Royal Assent

Lord Irvine of Lairg: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:
	European Communities (Finance) Act,
	Human Reproductive Cloning Act,
	National Australia Group Europe Act.

Social Workers: Caring for Children

Lord Northbourne: asked Her Majesty's Government:
	What proposals they have to increase the proportion of time which social workers spend on caring for children by reducing time spent on administration and the implementation of new government initiatives.

Lord Filkin: My Lords, the Government have made clear their commitment to improving child protection, ending child poverty, child deprivation and social exclusion. Our initiatives, which include substantial extra funding, are to provide an effective system to support social workers in their task of safeguarding children and young people and enabling them to achieve their full potential.

Lord Northbourne: My Lords, I thank the Minister for that encouraging reply. Is he aware—I am sure that he is—that the National Family and Parenting Institute recently produced a report in which it identified no fewer than eight government initiatives which social services had to cover in addition to their normal duties looking after children in need and children at risk? The initiatives are: Early Years and Child Care partnerships; Sure Start; Connexions service partnerships; youth offending teams; children's service plans; health improvement plans; Best Value; and Quality Protects.

Lord Filkin: My Lords, I thank the noble Lord for that useful summary of the range of relevant government initiatives on this issue. They are not separate from the job of social workers. There are two central thrusts to the Government's attempt to improve social care outcomes for children, in particular deprived children. The first is to make it much less likely that we will see a repetition of some of the scandals of child abuse which during the past 15 or 20 years have led to deaths year after year. The second is to address some of the root causes of social disadvantage by trying to improve the chances that children from deprived backgrounds will receive better educational outcomes, will obtain work and will be more likely to lead successful lives.

Lord Clement-Jones: My Lords, in the light of what the Minister has said, is it not time that the Government changed their mind and introduced a new independent children's commissioner for England, as they have done in Wales?

Lord Filkin: My Lords, no, I do not believe that that is necessary and it is not the Government's view that it is. We have introduced a range of measures to strengthen the regulatory framework over social services to try to ensure that the highest standards are being practised. Noble Lords will be aware that the Government are also promoting stronger inter-agency working and are trying to address the problem of different parts of the social care system having separate pieces of information about children potentially at risk. There will be a new integrated information system in place from 2002 which should substantially reduce the risk of children falling to their deaths through the gaps in the system, as we have seen in the past.

Baroness Pitkeathley: My Lords, does my noble friend agree that some government initiatives—not those mentioned by the noble Lord, Lord Northbourne, but others in which I declare an interest as interim chair of the General Social Care Council—will lead to a greater quality and regulation of social workers, particularly the registration of social workers and their deregistration if their work is not of sufficient quality?

Lord Filkin: My Lords, I thank my noble friend for her reminder and for the excellent work she is undertaking as the interim chair of the General Social Care Council. In addition, the Government are developing with the social work profession national occupational standards for social work; they are developing a three-year degree course for social workers; they are promoting best practice to the Social Care Institute for Excellence; and they are strengthening inspection and intervention powers where necessary.

Lord Elton: My Lords, will the noble Lord confirm that the database which he says will be in place in a couple of years will be United Kingdom-wide and not based on regions or other geographical or administrative areas? We may then escape the danger that children at risk are moved from an area in which they are on the register into an area in which they are not.

Lord Filkin: My Lords, I am happy to confirm that the database will cover all of England and will seek to avoid some of the dangers we saw in the Victoria Climbie case of a child moving between four local authority areas, thereby compounding the difficulties. I am not certain whether it will apply to Wales and Scotland, but I shall write to the noble Lord with that information.

Baroness Masham of Ilton: My Lords, how much training do social workers receive on conditions such as scabies so that the children most at need are not shunned like lepers?

Lord Filkin: My Lords, the short and honest answer is that I do not know; but I shall look into that. I would hope that social workers would recognise the important tell-tale signifiers of potential dysfunction in the family. They also signal potential problems in the school environment and therefore the need for effective social work, school and home linkages to address those issues.

Baroness Walmsley: My Lords, does the Minister accept that this is a matter of life and death since every week in the UK two children die as a result of being abused? What are the Government doing to recruit and retain more social workers? Does the Minister accept that, compared with the #7 million per year spent on police recruitment advertising, the #1.5 million that is currently spent on recruiting social workers is a drop in the ocean and goes to prove that social services are still the Cinderella of public services? Are the Government really committed to changing that?

Lord Filkin: My Lords, I agree that it is a matter of life and death. Even if it is not that dramatic it is an issue that affects the quality of life of very many children. One may not be killed by poor parenting or a poor care environment but one may still suffer very serious damage which affects for ever the quality of one's life. What are the Government doing? They have increased in real terms funding for social services by 18 per cent since 1996-97. They are currently addressing serious shortfalls in social work recruitment in some areas through the #1.5 million advertising campaign. The Government are also trying to raise the status of the social work profession and provide social workers with more administrative and IT support so that they are not swamped by some of the paperwork that tends otherwise to fall on them. Perhaps of greatest relevance to the question is that the Government are seeking to reduce the number of plans and bidding schemes that may in the past have distracted social workers from the fundamental core areas of their work.

Baroness Noakes: My Lords, does the Minister agree that despite the additional burdens imposed by government on local authorities in relation to children's services, such as children leaving care or adoption support services, they are committed to delivering improved services? The noble Lord will be aware that local authorities need adequate resources to deliver those additional services. Will he join me in regretting that the Chancellor's Pre-Budget Report had nothing to say about plans for personal social services spending?

Lord Filkin: My Lords, the noble Baroness will be greatly surprised to know that it is more than my job is worth to agree with her final comment! Despite that, I do not agree with it. I signalled earlier the significant increase in funding that has occurred over the past five years. I cannot forecast what will be announced later today in terms of the local government expenditure settlement, but we may well hope for yet another above-inflation real terms increase. I agree that social services struggle with very significant workloads. Every year there are 80,000 investigations into childcare issues and 30,000 childcare case conferences between agencies. They are real challenges. They do not represent the totality of the social services budget. About one-quarter of the budget is spent on childcare issues, of which child protection is itself only a part. I very much hope that the department, working with social services, will achieve yet more value from those resources.

The Clergy and Employment Legislation

Baroness Turner of Camden: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so I declare an interest as a former official and present member of MSF, the union to which some members of the clergy belong.
	The Question was as follows:
	To ask Her Majesty's Government what plans they have to deem members of the clergy as employed, under the terms of Section 23 of the Employment Relations Act 1999.

Lord Sainsbury of Turville: My Lords, as office-holders the clergy do not have contracts of service and so fall outside the scope of employment protection legislation. The Government currently have no plans to change the position, but Section 23 of the Employment Relations Act 1999 gives the Secretary of State the power to extend the coverage of certain employment rights to individuals not currently covered by it, and the Government are committed to publishing a discussion document on employment status.

Baroness Turner of Camden: My Lords, I am grateful to my noble friend for that response. Is he aware that there has already been an internal review by the Archbishop's Council which recommends that stipends should become salaried and part of a remuneration package for clergy? Does my noble friend agree that that is a substantial step on the way to acknowledging their status as employees? Is it not right, surely, that other employment cover should follow from that?

Lord Sainsbury of Turville: My Lords, as a simple Minister for Science I am rather nervous about coming between God and the Bishops and clergy. While technically the clergy are employed by God, I believe that in this context God would want to be a good employer. The issue is one that we are likely to want to discuss with the Bishops and leaders of other faiths in producing the discussion document.

The Lord Bishop of Hereford: My Lords, perhaps I may declare an interest. Is the Minister aware that the office-holder status of the clergy is more suited to the particular nature of ordained ministry than employed status with contracts of employment and self-employed status, neither of which is entirely appropriate in this particular case? Is the noble Lord also aware that all clergy are more than welcome to join the MSF union if they choose to do so? Does the Minister realise that the Church of England is presently engaged in a study of these matters to see whether it can find a better balance between security of tenure and employability for all clergy to enable them better to carry out their mission and ministry? While we are grateful for the Minister's reference to the discussion paper, can he say when that document will be forthcoming, because I understand that it will enable these issues to be taken forward in relation to all faith communities?

Lord Sainsbury of Turville: My Lords, the review will start at the beginning of next year. We shall discuss with leaders of all faiths the issues to be covered in that review. I believe that that is the place to set out some of the issues to which the right reverend Prelate refers in order to obtain the views of everyone on these important issues.

Lord Pilkington of Oxenford: My Lords, are the Government prepared to pay attention to the proposed clergy discipline Bill to ensure that when subject to discipline the clergy are given the same civil rights as any other employee? In other words, will the Government take note of that particular matter?

Lord Sainsbury of Turville: My Lords, the question of employment rights will be taken into consideration in the discussion document. I do not believe that that would necessarily extend to all questions of disciplinary rights, but we shall consider that point as we formulate the document.

Baroness Gibson of Market Rasen: My Lords, my noble friend will be aware that there are some exemptions from the Equal Pay Act, one of which is the clergy. Bearing in mind that many women are now entering the clergy, and will I am sure do so in future, does my noble friend believe that this is an opportune time to reconsider that Act particularly in relation to its exemptions?

Lord Sainsbury of Turville: My Lords, as the discussions progress, I am sure that all such issues will be raised and that we shall look carefully to see whether it would be productive to take them forward at this time.

Lord Newby: My Lords, perhaps I may declare an interest as a clergy spouse. Once the discussions are under way, will they include an examination of the entire raft of long-established and, in some cases, outdated principles which apply to the employment of the clergy, not the least of which is the system of the vicar's freehold?

Lord Sainsbury of Turville: My Lords, I can only reiterate that such issues are those which we shall consider. In the light of the views expressed by the House, we shall obviously give a great deal of time to the preliminary discussions.

Baroness Miller of Hendon: My Lords, I refer to Section 23 of the Employment Relations Act, which the Minister has also mentioned. The section gives the Secretary of State powers to define those persons who are entitled to rights under the Act. However, subsection (5) of the section states that the Secretary of State can do that either by amending Acts of Parliament or by amending statutory instruments, or Xotherwise". Can the Minister tell the House what the word Xotherwise" means in this context? Does it mean that the Secretary of State would be able to bypass Acts of Parliament or statutory instruments?

Lord Sainsbury of Turville: My Lords, I am sure that this point was debated at great length between the noble Baroness and myself at the time when the Bill passed through this House. I cannot remember exactly what Xotherwise" referred to in that context. However, I undertake to write to the noble Baroness to remind her of the interpretation.

Lord Lea of Crondall: My Lords, with regard to the general attitude of the Church of England to the role of employee representation, is my noble friend aware that His Grace the Archbishop of Canterbury gave wider recognition to the role of the trades union movement in his address to the Trades Union Congress held in Brighton four years ago? That address was greatly appreciated and very well received.

Lord Sainsbury of Turville: My Lords, I am glad that on that occasion it was possible to pay such a compliment to the most reverend Primate the Archbishop of Canterbury.

Afghan Women's Rights

Baroness Thomas of Walliswood: asked Her Majesty's Government:
	What consideration they have given to ensuring that women have full civil rights in a future Afghan state.

Baroness Symons of Vernham Dean: My Lords, one of the most appalling features of the Taliban regime has been its treatment of women, including restrictions on women's access to healthcare and education. Afghan women have participated in the talks held in Bonn, which today have led to agreement on the framework for the establishment of an interim administration in Afghanistan. We welcome the agreement and expect any future government to respect internationally acknowledged norms of behaviour towards their own citizens including, of course, women.

Baroness Thomas of Walliswood: My Lords, I am grateful to the Minister for that reply. Can she give any further information as regards the progress being made in relation to the main claims that I believe the women of Afghanistan want to make; namely, the right to receive an education, the right to work and the right to participate in public life in their own country, as they enjoyed before the time of the mujaheddin? Can the noble Baroness further tell the House when those claims will be considered and in what context?

Baroness Symons of Vernham Dean: My Lords, a United Nations-sponsored conference is to be held in Brussels tomorrow under the auspices of UNIFAM. It is extremely important that we consult the women of Afghanistan themselves about their priorities. We have heard a little about those views, but they have tended to come from Afghan women in the diaspora or those living overseas from Afghanistan at the moment. The conference, which is being held on 4th and 5th December, will include some 50 women's groups from Afghanistan, the refugee camps and neighbouring camps, and further will provide an important opportunity to gather together what exactly are those women's real priorities. I suspect that not only will issues surrounding education, the right to work and public participation in the life of Afghanistan be raised, but also matters such as the supply of clean water, food for children—one in four of whom die before the age of five—and basic healthcare, which most of us would think of as basic human rights.

Baroness Rawlings: My Lords, does the Minister recall that in 1977, 15 per cent of all the legislators in Afghanistan were women? On 2nd November, the noble Baroness, Lady Amos, stated that:
	XIt is the responsibility of the entire international community to ensure that the women of Afghanistan are fully involved".—[Official Report, 2/11/01; col. WA 186.]
	Can the noble Baroness tell the House what are Her Majesty's Government's plans if the new broad-based government of Afghanistan do not respect the basic human rights of women?

Baroness Symons of Vernham Dean: My Lords, we have reasonable grounds to believe that a new broad-based government will respect the basic human rights of women. I think that it is important to remember that three out of the 28 participants in the talks held in Bonn have been women. I cannot tell the noble Baroness whether any members of the interim government are likely to be women, but that too is possible. When I left the Foreign Office today, the names of the representatives for the new interim government had not been announced. However, I can tell the noble Baroness that my right honourable friend Clare Short, along with other women development Ministers from Europe, have made it clear that we expect and hope that women will become involved in the public life of Afghanistan.
	One of the basic building blocks to put in place is to ensure that the education of girls goes ahead. We should not forget that since 1996, as a matter of public policy rather than through poverty, girls have been excluded from the Afghan education system, such as it is. Those fundamental building blocks have to be put into place. However, of course I agree very much with the purport of the noble Baroness's comments.

Lord Renton: My Lords, will the noble Baroness do her best to ensure that Afghan women are no longer obliged to hide their lovely faces?

Baroness Symons of Vernham Dean: My Lords, wearing the burqa or, indeed, wearing any other clothing that is deemed appropriate in some Islamic countries is a matter for those Islamic countries and a matter for the women living in them. Surely, the question here is that real choice should be available to women. I certainly agree with the noble Lord, Lord Renton, that it is unacceptable for young women to be beaten for inadvertently revealing a small part of their face or an ankle. It is to be regretted that all too often we have seen such events depicted on our television screens. In countries where such apparel is deemed to be a question of respect, we must look at those cultural norms and hope that it is a matter of choice for the future.

Baroness Williams of Crosby: My Lords, perhaps I may press the Minister further on this issue. As she has pointed out, we do not know yet whether any women will be included in the interim administration for Afghanistan. Can the noble Baroness give an assurance that when the entirely male Council of Chiefs—I am not good at pronouncing the Afghan language, so I shall not attempt to say the Afghan word—meets to confirm that interim administration, which I understand it will do, some consideration will be given to the position of women in any future government? Furthermore, will Mr Robert Cooper, who, we understand, is to look after this matter for Her Majesty's Government, press the Afghan administration to bear in mind the interests of women when the council's views are taken into consideration?

Baroness Symons of Vernham Dean: My Lords, I can only reiterate to the noble Baroness that we pressed for women to form a part of the Afghan delegation to Bonn. I hope that that gives the noble Baroness some assurance of the seriousness with which Her Majesty's Government take the issue. The framework establishes that the interim authority will be set up for six months. Furthermore, there will be a supreme court and a 21-member special independent commission set up to elect a transitional government, along with a multinational force to secure Kabul.
	I cannot answer specifically the question put by the noble Baroness as regards whether, as a matter of course, those arrangements will include women. I am bound to say that I think that that would be an unusual specification. When looking at other areas of the world, I am also bound to say that certain other governments might look to the inclusion of at least a few more women in their administrations. However, I can tell the noble Baroness that we have pressed for women's voices to be heard. Lastly, I hope that the noble Baroness will take some assurance from the fact that a conference will be held tomorrow in Brussels. That conference will report back to a round table made up of international representatives at the end of the week.

House of Lords Reform

Earl Ferrers: asked Her Majesty's Government:
	Why the Statement on House of Lords reform, which was made in the House of Lords on Wednesday 7th November (HL Deb, col. 205), was different from that which was made in the House of Commons.

Lord Williams of Mostyn: My Lords, with a Statement of such direct interest to both Houses in their capacities as Houses of Parliament, it was not appropriate to make a Statement in one House repeated verbatim in the other. The two Statements covered generally the same ground but drew particular attention in one House to matters that might have been of less concern in the other. Our proposals are, of course, set out in the White Paper.

Earl Ferrers: My Lords, I am grateful to the noble and learned Lord for his, as always, courteous reply. Does he not think that, where matters of constitutional importance are concerned, it is desirable that Statements should be the same in both Houses? It would at least stop people ferreting around and trying to find out what are the differences and why. For instance, does the noble and learned Lord realise that when the Statement was made by the Lord President of the Council in another place, he praised for the part that he has played in the reform of the House of Lords, the noble and learned Lord the Lord Chancellor? Such eulogy was missing in the Statement given to your Lordships. Was that omission by mistake or on purpose?

Lord Williams of Mostyn: My Lords, I am grateful to the noble Earl, Lord Ferret—Lord Ferrers. As he and your Lordships know, I always try to pitch my answers to the intellectual calibre of the audience. In this serene House, self-evidently, no eulogy to the Lord Chancellor would be, or could be, required.

Lord Strathclyde: My Lords, given the reaction with which the Statement was greeted in another place—namely, that some 130 Labour MPs immediately rushed off to sign an Early Day Motion voicing their protest at the White Paper—does the noble and learned Lord now consider, perhaps with his colleague, the noble and learned Lord the Lord Chancellor, that it might have been better to resolve the differences within the Labour Party by sending the issue to a Joint Committee of both Houses?

Lord Williams of Mostyn: My Lords, looking back on it, it might have been better if my Statement had been given to the Commons. Then there would not have been any difficulty or misunderstanding which might have led MPs to sign the EDM.

Lord Goodhart: My Lords, does the noble and learned Lord accept that the real drawback is that there are no inconsistencies between the Statements made in the two Houses? If there had been, that might have given rise to the possibility that there were still some open minds in the Government and that these terrible proposals might have been changed before they arrived in your Lordships' House.

Lord Williams of Mostyn: My Lords, the White Paper is very green. The noble and learned Lord the Lord Chancellor said in terms that we wished to have consultations. Any offering by way of improvement—if such could be imagined—to the Government's present thinking will be gratefully received.

Lord Palmer: My Lords, when will the noble and learned Lord the Leader of the House be in a position to announce a timetable so that those of us facing expulsion from Parliament can plan for the future?

Lord Williams of Mostyn: My Lords, I cannot give a timetable in the context of the euthanasia to which the noble Lord is looking forward. However, responding to a number of requests from your Lordships, we hope to have a two-day debate on the White Paper very soon after our return from the Christmas Recess. I know that it is galling for the noble Lord—he has courteously written to me in the past about these matters—but I am very much in your Lordships' hands. I do not know when the ultimate stage of stage 2 will be arrived at.

Business

Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble and learned friend Lord Falconer of Thoroton will, with the leave of the House, repeat a Statement being made in another place on Local Government Finance (England) 2002-2003.

National Heritage Bill [HL]

Report received.

Anti-terrorism, Crime and Security Bill

Lord Rooker: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 89 [Fingerprinting of terrorist suspects]:

Lord Dixon-Smith: moved Amendment No. 152A:
	Page 47, line 30, after first Xof" insert Xterrorist"

Lord Dixon-Smith: It is wonderful to have such power to empty seats. This group of amendments raises a very important point about which we have made criticisms throughout the Bill's passage so far—that is, the wide scope and nature of what is supposed to be emergency legislation for dealing with terrorist and security matters.
	Some amendments in the group are brought forward with the names of noble Lords of my party on top, some with the names of noble Lords of the Liberal Democrats on top, and some stand in single-member party names. There is no collusion in terms of our approach to this issue; we have a common concern about matters.
	It has to be admitted that we have a problem. In promoting themselves and in funding their operations, terrorist organisations almost certainly commit all kinds of crime. But not all kinds of crime are necessarily terrorist related. So there is a dilemma. Nevertheless, we feel strongly that the Bill should be restricted, if it can be, to the emergency nature of the legislation which we are rushing through—that is, to dealing with terrorist matters.
	To give an illustration, the first part of Clause 89 deals with the fingerprinting of terrorist suspects. But, as one goes further through the clause, one finds Xor for purposes related", which means that the powers can be used much more widely for normal criminal activity. As I have observed, crime is always with us. It does not seem proper that the normal criminal aspects of the life of our communities should be dealt with through these emergency procedures.
	All the amendments in this large group are devoted to the same purpose. I do not intend to bore the Committee by going through them one by one because the wording is similar every case. None the less, they raise a small but important point. I beg to move.

Lord Goodhart: My noble friends and I have put our names to Amendments Nos. 153 to 155, 156 and 159, either as the lead names or together with the Conservative Front Bench. We entirely agree with what the noble Lord, Lord Dixon-Smith said. The argument that these powers should be restricted to dealing with terrorist problems has been made many times. It has been supported by speakers on all sides, both at Second Reading and in Committee. I do not think there is any need for me to take it further.

Lord Alexander of Weedon: I apologise for the fact that this is my first opportunity to take part in the Committee stage. I declare an interest as chairman of Justice, the all-party law reform group, which has extensively briefed many Members of the Committee on the Bill. I had no part in the preparation of the briefing. Justice accepted that the purposes of the Bill were such as potentially to justify derogation from the Human Rights Act if, and only if, the Bill was proportionate and was focused sharply on the terrorism committed on 11th September. As the noble Lord, Lord Goodhart, stated, many of the Bill's provisions go wider than that.
	Members of the Committee heard yesterday that the Delegated Powers and Regulatory Reform Committee, of which I have the privilege to be chairman, protested most strongly about Clauses 110 and 111 having nothing to do with the emergency arising on 11th September. On that basis, I content myself with saying that each time we fail to narrow the purposes of the Bill, we lessen the prospect that our derogation from the Human Rights Act will be held to be justified. Each time we fail to narrow the purposes of the Bill, we dent civil liberties. I support the amendment.

Lord Clinton-Davis: I support the remarks of the noble Lord, Lord Alexander. The Minister has to convince me—and, I hope, others like me—that the derogation he seeks is justified. Like the noble Lord, I am worried about the breaches of freedom signified by this approach.
	In both Houses, I have long been a supporter of civil liberties. The Minister has to approach people like me as having an open mind. But at the moment the view broached by the noble Lord is not a fanciful one. We are deeply worried by the Government's approach. The focus on terrorism ought to be applied in this case—and it is not.

Lord Beaumont of Whitley: Three of the amendments in this group stand in my name. I apologise to the Committee for not being able to be present yesterday. A series of rather attractive operatic events in Budapest coincided with the international meeting of the Green parties of Europe.
	My Amendment No. 155A is a de minimis amendment. It seeks to ensure that this legislation does not apply to matters which are extremely small and which should not be included in this area. I am sure that they are covered by the major amendments in the group which have been spoken to.
	My Amendment No. 158ZA deals with a more specialised point. There are plenty of instances on record where the police have requested that people take off face coverings and have not given them time to do so before arresting them. The amendment is intended to meet that point and to make sure that it is not a crime to be slightly slow in obeying a request that a person may not have understood in the heat of the moment. That can apply at protests on ecological (or green) grounds rather more than in instances relating to the kind of terrorism with which the Bill mainly deals.
	Amendment No. 158ZB attempts to remove the penalty of imprisonment, as opposed to a fine, for such minor offences. I speak on behalf of my party when I say that we strongly support all the major amendments in the group. I hope that the Government will see reason.

Lord Marsh: I should be grateful if the Minister would address a fundamental point. All the amendments have one thing in common which has informed the remarks that we have heard so far. The trend is to interpret the word Xemergency" as synonymous with Xtemporary".
	The point is fundamental because many people do not believe that what happened on 11th September left behind it a Xtemporary" situation to be dealt with over a limited period of time. Many people believe that it changed the whole approach to the fight against terrorism. There has been a recognition that terrorism now has resources—both financial and in terms of following and commitment—on a scale previously unknown. If that is the case—and it is certainly my position—we have to examine the question of civil liberties and rights, and of their erosion, in a different way. We must take on board the fact that we live in a different society, that the threats are much greater and that some thousands of people have been killed—that is not an emotive point. It is recognised that the resources, skills and finance available to carry out such offences are greater than we have ever known, as is the commitment to carry them out. Secondly, those who perpetrate the crimes have made it very clear that they have the ability and the commitment to repeat them, not only in this country or in the United States but in other parts of the world.
	I should like to know the Government's view. If this is a passing phase and we shall grow out of it, then of course we can afford to continue with the liberal regime that we have had, totally unchanged. If we do not regard it as a temporary phase, then we must make some changes. I do not argue for one side or the other. There will be different views; I should like to hear the Minister's.

Lord Clinton-Davis: Why cannot there be primary legislation later to deal with the noble Lord's point?

Lord Marsh: That is not my point. I am raising a more fundamental point, which can be dealt with—or not—in primary legislation. Depending on the view that we take of the importance of the present situation, it may be felt that primary legislation should follow later.

Lord Elton: The noble Lord is speaking well outside the scope of the amendments and of the Bill. This is emergency legislation that is being discussed in haste. I ask the noble Lord to wait before responding, just as I waited for him to finish before I made my comments.

Lord Marsh: I was just moving to make myself more comfortable.

Lord Elton: I hope that he will be comfortable when we have finished.
	The Bill is being taken through Parliament in a rush. When one is in a rush, one is prepared to accept limitations of liberty because there is an emergency, which will last for a short time. After that, we will have an opportunity to deal with the circumstances that may prevail for a long time. That is when the noble Lord should make his speech, not now.

Lord Marsh: I have tried to make it clear that I was talking about the definition and perception of the word Xemergency", which has, quite properly, been used frequently in relation to the amendments.

Lord Rooker: We have reached Part 10, which deals with police powers. Far be it from me to criticise, but I have not heard any case made for the amendments, so I am having some difficulty in responding to them. The general thrust seems to be that we should not extend police powers in the way proposed in Part 10. I say that we are extending police powers, because by and large the powers in this part are not new, but are extensions of existing powers. That is an important point.
	Following the first part of the comments of the noble Lord, Lord Marsh, I hope that it is accepted from the public evidence available that the events of September 11th had clearly been in planning for years, not just for days, weeks or months. We do not yet know what was planned years ago for next year. That is the problem. That is why we are taking precautionary measures as quickly as we can and extending powers. I do not accept the extravagant language that has been used outside your Lordships' House that this is the end of liberal democracy. Our liberal democracy is strengthening its powers to secure and maintain itself as a liberal democracy. I will argue that in any forum. If we did not take some precautions, we would be failing in our duty as a government and as a Parliament.
	The amendments on the central issue of the extension of police powers are all neatly grouped together. I shall not go down the highways and byways of all the nuances of the changes. There are several clauses involved and the amendments cover some of the issues. It is important to put on the record the reasons for the content of the clauses. I shall briefly address most, if not all, of the amendments and answer any questions that there may be.
	The first three amendments in the group—Amendments Nos. 152A, B and C—relate to Clause 89, which amends the Terrorism Act 2000 to allow the police in Scotland to examine fingerprints and DNA samples taken under the powers of that Act when investigating crime generally. At the moment, those records can be searched only if the police are investigating suspected terrorist offences. There is therefore a risk that they will miss connections between terrorist suspects and what I would call ordinary, common or garden criminal offences that may be committed as an adjunct to terrorist activity. For example, a van may be stolen for use as a bomb, but recovered without any evidence of its intended terrorist use. Believe it or not, it would not currently be possible in Scotland to check any prints or samples against those of all previous terrorist suspects, even though that might reveal the true purpose of the theft.
	That change was introduced for England and Wales in the Criminal Justice and Police Act 2001. Unlike in England and Wales, in Scotland only prints and samples taken under anti-terrorism provisions can be retained if the suspect is not subsequently convicted. Prints and samples taken under other powers must be destroyed. The amendments would constrain the police to using those prints and samples only for terrorist investigations, as is currently the case. They would therefore undermine the purpose of the provision and we shall resist them.
	Clauses 90 and 91 give the police necessary additional powers to search and examine persons in detention who will not say who they are or about whose identity there are reasonable doubts. I hope that it is accepted that the investigation of crime and the prevention of further crime can be impeded if it is not possible to make reliable identification. The police also need a specific power to seek identifying marks that would tend to identify a detained person as being involved in the commission of an offence.
	Amendments Nos. 153 and 154 would limit those powers to circumstances in which the person was detained in connection with a terrorist investigation. I hope that the flaw in that approach is obvious to the Committee. If the new powers are to be fully effective in supporting the fight against terrorism, we have to take account of the fact that an involvement in or connection with terrorism may become apparent only once the identity of the person is established. To the extent that the powers are relevant in determining or verifying a detained person's identity, they have the potential to reveal important links with terrorism that were not previously suspected.
	We want to stop terrorists or their supporters being able to slip easily through the police net. We are adopting a precautionary approach with a modest extension of existing police powers. I accept that in some exceptional circumstances such examinations could prove intrusive. The power to examine someone for an identifying mark to prove their identity could be intrusive. We shall issue guidance to the police about how they should approach situations in which identity cannot be established.
	The first option is to search through personal belongings and effects for clues. That is the normal approach. If that was not helpful, the next step would be to take fingerprints and photographs. Only if those logical steps drew a blank should the police consider the possibility of a body search for possible identifying marks. Properly used and supported by appropriate guidance, these expanded powers could be very useful in seeking to identify people in connection with investigations.
	This may not come as a surprise to some of your Lordships—although it certainly came as a surprise to me, because in 27 years as a constituency Member of Parliament, I had never come across the fact—but without the new powers in Clauses 92 and 93, the police will continue to be unable to photograph a detained person who is unwilling to co-operate and who successfully obstructs the process in some way. We are talking about mug shots taken in a police station. I had thought that the police had the legal right to make sure that they could take a photograph, but that is not necessarily the case.
	Taking a photograph can be a critical aid to identification or to detection or prevention. For example, it may be desirable to circulate a photograph of a suspected terrorist to areas where relevant offences are being investigated. More directly, the photograph could be compared against existing records. Such records could be at a location remote from the police station in question. It would be self-defeating to limit the powers to circumstances in which a person was detained in connection with a terrorist investigation. Crime is used to fund terrorism. There may be a crime and criminal activity, but the criminal concerned does not know that he is part of some terrorist funding operation. He may just be a jobsmith criminal. It is important to the authorities to be able to continue to investigate in those circumstances to see whether there are links. It may be apparent only when we have the identity of the person by taking photographs to see whether terrorist links are thrown up.
	These new powers will help to ensure that such criminals do not pass through custody unrecognised. They will allow for the use of reasonable force to remove items or substances worn on or over the head or face of the person to be photographed. Such removals will need to be handled with the utmost care, which is self-evident. There needs to be sensitivity to individuals—after all, we are dealing with fellow human beings—and sensitivity to cultural or religious issues. We shall give the police full guidance on that area of activity.
	The basic power to take a photograph of a detained person is not a radical intrusion on the rights and freedoms of citizens of this country. It can make a substantial contribution to helping to ensure that terrorists and their supporters are caught and that such activity is prevented.
	Amendment No. 155A would restrict the use of photographs and would prohibit their use in cases involving breaches of the peace, obstruction of the highway and minor criminal offences under Sections 4 or 5 of the Public Order Act 1986, referring to the use of threatening, abusive or insulting words. The amendment of the noble Lord, Lord Beaumont, seeks to limit the use and disclosure of photographs that were taken by a person involved in such activity who was subsequently arrested. The amendment is unnecessary, as it is not the Government's intention that the police or anyone else should circulate photographs of people who are arrested for offences against all and sundry. The taking of a photograph is somewhat less intrusive than the taking of fingerprints, and Clause 92 proposes limitations on the use and disclosure of photographs in exactly the same way as fingerprints.
	I assure Members of the Committee that the issues surrounding the use and disclosure, and indeed the retention of photographs, is a matter that the Home Office is considering very carefully, together with the relevant ACPO working groups. We shall issue new guidance on all the new provisions in due course, and there will be specific guidance on the treatment of photographs.
	Clauses 94 and 95 provide extended powers to allow a police inspector to give authorisation to officers to require the removal and seizure of face coverings that are worn for the purpose of concealing identity. The authorisation applies only to a particular locality and could last for 24 hours, with an extension of a further 24 hours. Before giving the authorisation the inspector must reasonably believe that the activities may take place in a specified locality within his police area and that such activities are likely to involve the commission of offences.
	The power to remove face coverings in a designated area already exists; this is not a brand new power. We are amending the test from reasonable belief that serious violence may take place to reasonable belief that activities that are likely to involve the commission of offences may take place. The tactic of wearing face coverings during outbreaks of public disorder has become increasingly widespread. Demonstrators involved in intimidatory or violent protest often wear masks or balaclavas that hide most of the face. These can serve a double purpose. They can both disguise the identity and heighten the intimidation of the people that the activity is directed against.
	I can give an example from my previous ministerial experience in the former Ministry of Agriculture, Fisheries and Food. Scientists who were advising the ministry on animal health matters were sometimes visited at home by a mob of up to 20 people wearing balaclavas. Homes were attacked and officers of the ministry who were going about their business were attacked by people wearing masks and balaclavas in a thoroughly intimidatory fashion. Wearing such masks was designed to conceal the identity of the person and to heighten the intimidation. I suspect, although I have no evidence, that in some cases it may lead people to commit acts that they would not normally commit because they think that they cannot be identified.
	Amendment No. 157 would extend the provision to cover the removal of substances such as face paint. We have considered the issue carefully. Face paint can be difficult to remove. I do not have personal experience, but I know a few people whose children have had their faces painted. Washing facilities are unlikely to be available during a demonstration. We concluded, therefore, that it would be unreasonable to require a demonstrator to remove face paint or to arrest him if he failed to do so. However, we consider it reasonable that a person who is detained at a police station should be required to remove face paint, or for the police to remove it so that the person can be photographed. Clause 93 specifically includes provision for the removal of face paint.
	Amendments Nos. 158 and 159 would limit the powers of Clauses 94 and 95 to when it was reasonably believed that the activities involved the commission of terrorist offences. If these powers were limited by the amendments, the police would no longer find them useful for dealing with public order issues when face coverings were worn while crimes were committed. It would be more difficult for the police to obtain intelligence that crimes for terrorist purposes were likely to be committed.
	As I said, sometimes the only links between the crime and the terrorism, or the alleged terrorism, are found only during the investigation itself. We are resisting the amendments because the police cannot effectively combat terrorism unless they have some inkling of the identity—sometimes the multiple identities—of the people they are looking for and dealing with. Why should an alleged terrorist have the option of concealing who he is by refusing a reasonable police request to take straightforward action to establish his true identity? What is the problem with that? Providing such powers only when there is already a known link would be an inadequate and half-hearted approach.
	On Amendment No. 158ZA, it must be recognised that the police have a difficult job in policing demonstrations. It is a long time since I marched in a demonstration in the late 1960s in Grosvenor Square, but I know how difficult it was for everybody. I did not commit any offences, I should say. It was a peaceful protest all round. However, swift action is needed if it is believed that offences may be committed. We believe that it should be left to the judgment of the police officer on the ground to decide if and when to arrest someone for not removing the face covering that is concealing his identity.
	I accept the point made by the noble Lord, Lord Beaumont, but I believe that we should leave the matter to the good judgment of police officers. If people are aggrieved, there are complaint procedures that they can follow if they feel that they have not had enough time to remove their mask or balaclava.
	Amendment No. 158ZB would mean that magistrates no longer had the option of a custodial sentence for a person who failed to remove an item when required to do so by a constable. Under Clause 94, a person who fails to remove an item when required to do so by a constable is liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, which is #1,000.
	Amendments Nos. 158A and 159A amend the penalty for the offence from a fine not exceeding level 3 on the standard scale to a fine not exceeding level 2 on the standard scale, which is #500. We believe that the sentences as drafted reflect the seriousness of the crime. They follow the sentences in Section 60 of the Criminal Justice and Public Order Act 1994, as amended by the Crime and Disorder Act 1998. We consider there is no case to change the penalties for the offence.
	For extra clarity it is worth pointing out to the Committee—this will assist the other place which did not necessarily have enough time to debate all of the changes—that there is nothing fundamentally new in this group of clauses. They are extensions. The powers are already in place. We believe that they are a modest, precautionary and, indeed, proportionate approach to the situation in which we find ourselves now of extending the investigatory powers of the police. I realise that there has been a debate about who should make the decision to require the removal of items which may conceal someone's identity. However, one has to bear in mind that the constable, inspector or whoever is carrying out the task must take a reasonable view that the face being covered is being covered in such a way in order wholly or mainly to conceal the identity of the person involved. That may not necessarily be the reason for someone covering his or her face. I refer to cultural and religious reasons for doing so.
	I turn to the Immigration Service. Many people enter this country and present themselves at airports with covered faces. However, there is never any problem as regards obtaining a cross-match with a photograph in a passport. The Immigration Service handles the matter carefully and is sensitive to the cultural needs and gender of the people concerned. The matter is not handled in a way that humiliates the people concerned. I can find no evidence of any complaints. Therefore, in my view that matter is a complete red herring in relation to discussion of these issues either inside or outside Parliament.
	Existing powers to designate areas where the action we are discussing can be taken have not often been used. A designated area was declared during the May Day demonstrations in central London. Designated areas have also been declared in both Cambridgeshire and Staffordshire to tackle animal rights demonstrators. Such provisions can be incredibly intimidatory for the people concerned. The police will not routinely walk up and down the streets of this country demanding that people remove face coverings, be those red noses, masks, cultural or religious coverings. That does not constitute the power that we are discussing. I genuinely believe that the nature of what is proposed in this extension of police powers meets the current situation following the events of September 11th. It is reasonable that the provision should apply for some time. That is why we do not wish to put a time limit on it.
	I end as I began. The events of September 11th were planned many years ago. No one has ever claimed that any part of the Bill, or the whole of it, would of itself have prevented the disaster of September 11th. No one has ever made that claim and we do not seek to make it. The Bill is not sufficiently intrusive to enable us to make such a bold claim. The powers that I am discussing constitute modest extensions and are covered by the normal rules governing the police. The guidance issued under the Police and Criminal Evidence Act 1984 will be revised and updated to take account of all the activities that I have mentioned. All the necessary existing checks and balances on the use of police powers will be maintained and operated as regards the powers that I am discussing.
	I honestly believe that no one—I refer particularly to those who comment on the affairs of Parliament—has made anything like a reasonably decent case as regards criticising the powers in the Bill. They have made a case as regards powers that are not in the Bill in order to get a headline and a thousand word fee. However, we in this Chamber and the other place are responsible for the words in the Bill, not those that journalists think are in the Bill. We should bear that in mind as we continue to debate the Bill. I hope, therefore, that Members of the Committee will not seek to press their amendments.

Lord Campbell of Alloway: I ask—

Lord Elton: I ask—

Lord Campbell of Alloway: I am obliged to my noble friend. I hope that I may ask the noble Lord a simple question of principle concerning the Government's approach to the Bill, to primary legislation which it will involve and to the powers in the Bill to create subordinate legislation. I happen to agree unreservedly with the speech of my noble friend Lord Alexander. I happen to agree unreservedly—although I did not take part in the debate—with the views of the Chamber as expressed on Clause 110 yesterday. However, is the approach this—or, if it is not, should it not be?—that what is provided in the Bill in primary legislation and the powers to create subordinate legislation should be strictly related to the global threat of terrorism as it is perceived and should be proportionate to it? Is that the approach of the Government because, if it is not, I respectfully suggest that it should be and it must be?

Lord Rooker: I believe that it is. The noble Lord has just touched on much wider aspects of the Bill. I have said many times in Committee that we accept that the Bill is being fast-tracked through Parliament. No one denies that. It is self-evident from the lack of time between stages that it is being fast-tracked. There is not much time between stages to permit mature consideration of noble Lords' contributions which have all been extremely useful and helpful to Ministers. Clearly, this Chamber has had more time for discussion than the other place. However, we have repeatedly said that one cannot put in the Bill issues relating only to terrorism for reasons I hope I have explained.
	However, I say to the noble Lord that we have indicated that both Chambers ought to have the opportunity to revisit the whole Act of Parliament and to review its operational effect after a reasonable period, as I said at the beginning of last Thursday's debate. I floated the possibility that Members of the Privy Council from both Chambers could take an oversight of the whole Act—notwithstanding the statutory review of the detention powers by the noble Lord, Lord Carlile—with access to security provisions and everything else, report back to the Home Secretary and publish a report to be debated in both Chambers.
	Last night the noble and learned Lord, Lord Donaldson, made a suggestion which constituted almost a compromise for those who demanded sunset clauses throughout or a block sunset. We are seriously considering the possibility of Xmarrying up" the proposal of the noble and learned Lord, Lord Donaldson, and the demand of those who want a block sunset; that is, a provision in the Bill to the effect that if within, say, two years—we said 15 months for the first review of the noble Lord, Lord Carlile—the Home Secretary had not published a review of the Act a block sunset would apply. That is an additional reason to set up such a review involving Members of this Chamber. This Chamber would have the right to debate the report which could contain recommendations on the detail of the Act as it would review the operation of the Act. It may state that some parts of the Act are working well but others need strengthening. The report may state that, in the light of experience, some provisions are too far-reaching. That offer is on the table. I genuinely believe that that type of approach would meet the substance of the point raised by the noble Lord, Lord Campbell. Many aspects of this primary legislation can create secondary legislation. In a way, the JHA aspect is slightly separate from the nature of the debate that we had last night. But there are other areas where secondary legislation will be created.
	It is important that this House and the other place feel comfortable with the operation of the legislative process. If there is not a degree of comfort with it, it will be a festering sore in your Lordships' House and, indeed, in the other place. Frankly, that will interrupt the flow of our business and the consideration of many other issues. That will be to no one's benefit. It will not be to the Government's benefit, the Opposition's benefit or to the benefit of any party.
	Therefore, in relation to looking at how the Act works, there is a possibility of compromise consistent with the Government's central objective. That objective is to get the Bill on to the statute book before the Christmas Recess. I make no bones about the fact that our central objective is to deal with this legislation and the necessary orders following the JHA before Christmas.

Baroness Park of Monmouth: Perhaps I may ask the Minister a question. I do so out of deep ignorance, I am afraid. If there were to be included in the Bill sunset clauses and the opportunity to review—I assume that that implies the opportunity to change and to go back upon some decisions in the light of the review in two years' time—what would be the status of that in terms of our obligations in Europe? Would we be able to decide not to pursue a line of action which we had agreed but which, on review, we found for some reason was not acceptable to us? Would it be possible for us to do that and to enforce those changes in the light of our obligations to Europe and the relationship of our law to European law?

Lord Rooker: It is a cop-out for me to say that that is a thoroughly hypothetical question because I understand the noble Baroness's intention in asking it. However, we would have to await the outcome of such a review. If a review took place along the rough lines that I have indicated, it would contain recommendations relating to the Act of Parliament—that is, its sections and subsections—depending on whether they had operated in a good, bad, indifferent or neutral manner. Of course, in any event, aspects of our international obligations must be taken into account; for example, in relation to the derogation from the human rights legislation. Therefore, there is no question that a mix-up with international obligations is involved. Parliament is sovereign. That is the only answer that I can give to the noble Baroness. It is a statement of fact that Parliament is sovereign. That is a pretty good answer.

Lord Elton: That was true, but, alas, it no longer is because there are certain things that we are bound to do by treaty when they are put upon us by a consensus of opinion in Europe. My noble friend asked whether that consensus would leave us free to treat this Bill as we wished in the event of a review such as he described.
	I do not want to prolong this debate because many noble Lords want to hear the Statement. However, having listened to the noble Lord, I am reminded that we always refer to this as the XAnti-terrorism Bill". But it is not; it is the Anti-terrorism, Crime and Security Bill, and the Long Title makes it clear that it is designed to do a great many things other than fight terrorism. That is what makes us uneasy. We believed that we were being summoned to deal with a particular crisis in a particular way and that, when we had dealt with that, we would settle down and deal with questions such as whether photographs should be kept. I draw your Lordships' attention to Clause 90(9) on page 48 of the Bill. The provision set out there is reflected in later clauses. It states:
	XA photograph taken under this section . . . may be used by, or disclosed to, any person for any purpose related to the prevention"—
	not of terrorism but the—
	X. . . detection of crime, the investigation of an offence or the conduct of a prosecution".
	The noble Lord is being frank about this matter. He says that crime is a seamless robe, that a terrorist may make a living from selling drugs on the street and that, unless one is aware that every criminal is a potential terrorist or a potential paymaster of a terrorist, one will get nowhere. Those issues take us wider than the purpose for which we believed we were brought to this House. Therefore, the idea of a review, which I found very attractive early on, begins to seem less attractive. I believe that we shall have to look at the whole matter again fairly soon.

Baroness Carnegy of Lour: Perhaps I may take the Minister back to his account of the various amendments that have been moved. Some parts of the Bill which we are discussing will have to be implemented by the Scottish Executive and some will not. The Minister mentioned specifically one concerning fingerprinting which will apply to Scotland. Can I take it that the Labour/Liberal Democrat Scottish Executive and the Liberal Democrat Justice Minister are happy with what the Government propose?

Lord Rooker: From the information that we have received from Scotland, the noble Baroness may take it that they are content for us to legislate in this way. From memory, I believe that there is one area where the common law in Scotland is different from that in England and Wales. I cannot remember what it is, but the common law in Scotland suffices for what needs to be done; it does not need to be done in a statutory form.

Lord Marlesford: I found what the Minister said in relation to the amendments before us convincing. He convinced me that, although the provisions which we are discussing the possibility of amending are ancillary, they are also necessary for the combat of terrorism. Later, he started to talk about a compromise in relation to reviewing the Act. If, by that, he meant that we should pass the entire Bill on the basis that there would be a subsequent review, I am afraid that I would not be able to accept that. I believe that parts of the Bill—these amendments do not relate to them—require much more discussion than we shall be able to have over the next few days and I do not consider them to be central to the purpose of the Bill. Therefore, I hope that in due course the Government will be prepared to bring forward those provisions for proper scrutiny and consideration.

The Lord Bishop of Hereford: I want to make some brief remarks on Clauses 89 to 95. Like the noble Lord, Lord Marlesford, generally speaking I am convinced by what the Minister said about the necessity of the powers contained in these clauses. However, I am deeply concerned about the way in which they are implemented. In particular, disguise is a very powerful weapon in the armoury of a terrorist. It must be necessary for people to be obliged to remove disguises, but it must be done with the utmost sensitivity, courtesy and consideration. It is not possible to legislate for those things, but it is possible to make one or two provisions, such as, for example, that set out in Amendment No. 157A, which I hope the noble Lord, Lord Dixon-Smith, will press. Such provisions will be absolutely vital if that procedure is to be acceptable.
	In general, I entirely agree with what was said in the Chamber yesterday by noble Lords who criticised Clauses 110 and 111. Indeed, we must stand firm in opposing them. But I hope that the Committee will accept that, in arguing for the broad powers here, the Minister is right in so far as the identity of a terrorist may become evident only after an investigation has begun. I want to commend the points made by the Minister in that respect.

Earl Attlee: Following on from the points raised by my noble friend Lord Marlesford, is the Minister convinced that he has gone far enough? Is it not possible that he will come back at a later stage for another dose of salami powers?

Lord Rooker: We do not have any plans for an Anti-terrorism, Crime and Security (Amendment) Bill at the moment. I said yesterday that we make no secret of the fact—it is what people would have expected—that we trawled Whitehall to find gaps and loopholes in our legislation where we could be vulnerable. We have taken a precautionary approach to closing those gaps and loopholes.
	We clearly have plans to bring forward a Bill on extradition but that is not related. It is the result of the review of extradition legislation published 18 months ago. We have said that we will also use that as the vehicle for European arrest warrant details and that we will bring forward another Bill on asylum and immigration in about March. That will follow a White Paper—not related and going much wider—on citizenship and managed migration. It is true that the three Bills were not planned in the gracious Speech as Home Office legislation this Session—but we do not plan any more.
	I cannot answer the right reverend Prelate in more detail than I have. I believe that he accepts that the powers are necessary, for which I am grateful. I assure Members of the Committee that we shall rigorously ensure that the powers are operated in conformity with PACE legislation and that the code of practice is unambiguous about how the powers should be used.

Lord Dixon-Smith: The Minister has given many detailed replies, for which we are all most grateful. Whether or not we agree with everything he says, he has done everything he can to help us forward. I refer in particular to the Minister's welcome offer of a process of review. Our difficulty is that there is no government amendment or anything on paper that would enable us to make a judgment of the value of the noble Lord's assurance. I do not impugn the Minister's integrity—it is simply a matter of reality. If the noble Lord can use the day off from the Bill that we are to enjoy tomorrow to find time to persuade his staff to put something on paper that can be added, to create a reality out of hypothesis, we might be arguing from a different situation.
	At the beginning of this debate nearly an hour ago, the noble Lord, Lord Marsh, observed that the emergency which gave rise to the Bill was not temporary. To the extent that the noble Lord was talking about the consequences of September 11th, he is correct. I am glad that the emergency that took the noble Lord out of the Committee has allowed him to return in time to hear me sum up .
	The emergency is here, in this Chamber. We have had five consecutive sitting days on the Bill. We shall have one day's break, then sit three more days. The emergency is in the procedures that we are going through—which we have agreed and go through happily—to get the legislation on the statute book. We are as intent on doing that as are the Government—even if we will fight parts of the Bill as strongly as we can. Some aspects of the Bill do not relate to the reasons for bringing it before us and are not justified by the sort of procedures that we are putting ourselves through to achieve the Government's aim.
	I accept that we are dealing with a change in circumstance. When the Bill is passed, it will be permanent—subject only to any sunset clauses that Parliament may choose to impose or to any review procedure that the Minister may bring forward. I want to make it clear that we are not dealing with simple, straightforward confusion between a temporary situation and a permanent one. We have had a good debate and the noble Lord has given some thorough answers, for which I am most grateful. At this stage—particularly since many Members are beginning to gather to deal with another matter—it would be discreet if I were to conclude now. We may need to return to these issues on another occasion. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 152B and 152C not moved.]
	Clause 89 agreed to.
	Clause 90 [Searches, examinations and fingerprinting: England and Wales]:
	[Amendment No. 153 not moved.]
	Clause 90 agreed to.
	Clause 91 [Searches, examinations and fingerprinting: Northern Ireland]:
	[Amendment No. 154 not moved.]
	Clause 91 agreed to.
	Clause 92 [Photographing of suspects etc.: England and Wales]:
	[Amendments Nos. 155 and 155A not moved.]
	Clause 92 agreed to.
	Clause 93 [Photographing of suspects etc.: Northern Ireland]:
	[Amendment No. 156 not moved.]
	Clause 93 agreed to.

Lord Davies of Oldham: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Local Government Finance

Lord Falconer of Thoroton: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Transport, Local Government and the Regions. The Statement is as follows:
	XWith permission, Mr Speaker, I should like to make a Statement about local authority revenue finance for England 2002-2003.
	XPublic services are the clearest symbol of community and solidarity. They are literally what we provide together as a society. For millions of people, public services are social justice made real. Our challenge is to take the action and introduce the measures necessary to raise standards, provide choice and improve quality.
	XI am pleased to be able to inform the House that this local government settlement will see total support from government grant and business rates of #47.3 billion. That is an increase over this year of #3.3 billion or 7.4 per cent—an increase more than three times the underlying rate of inflation.
	XThe #47.3 billion is made up of #19.9 billion in revenue support grant, #16.6 billion in business rates and #10.8 billion in special and specific grants. Today, I am announcing details of the allocation to individual authorities of the #36.5 billion of revenue support grant and business rates. When taken together with the police grant of #3.8 billion and other minor adjustments, this represents an increase of 4.8 per cent over this year's allocation.
	XSo the money will be going in but on its own that will not be enough to secure the extensive improvements we want to see in our public services. So the extra funding must drive forward change. It must ensure that our programme of modernisation and reform is implemented.
	XI know that for some change is never easy. But we need to be clear that reform is not the enemy of good quality public services. Put simply, we cannot leave things as they are. The status quo is not an option. So we must invest in reform and insist on results.
	XToday's Statement, coupled with the Local Government White Paper which we should publish before Christmas, shows how we will apply this approach to local government.
	XCouncils deliver a wide range of services which affect all our lives and which are vital in delivering real improvements to our economy and our quality of life. They help to provide better education services and sustain a better deal for the more vulnerable members of society. They are key players in providing a better quality local environment and safer communities.
	XFor this year, we introduced a system of minimum and maximum grant increases for those authorities with responsibility for education and social services. Such a policy was necessary because we recognised the unfairness that could be caused by the simple application of the present funding formula, which many regard as unfair. I am pleased to be able to inform the House that this will be the final settlement based on the present funding regime. From April 2003, we will introduce a system which is transparent, fair and just.
	XThe introduction of a minimum ensured that every authority within the scheme got a reasonable level of grant increase. To pay for the floor, we imposed a maximum on grant increases, and scaled back the rises received by authorities between those two levels.
	XThis approach was generally well received. This year, therefore, I am extending the scheme to shire districts and a group comprising of police authorities, fire authorities, and the Greater London Authority. I am pleased to be able to announce that I am setting the minimum level so that in 2002-03 these authorities will receive a grant increase of at least inflation of 2.3 per cent on a like-for-like basis.
	XI have, however, given special consideration to those authorities with responsibility for education and social services. Last year the minimum increase was set at 3.2 per cent. This year, with inflation at 2.3 per cent, I have had to consider whether we could match last year's figure. This would not be easy, but 3.2 per cent would give these authorities an income well above the rate of inflation.
	XSome have put forward the case for an even higher floor. Some have suggested 3.5 per cent; others 3.75 per cent. I have rejected these proposals. Instead I want to reflect the value we place on education and social services. I shall be introducing a minimum increase in grant of 4 per cent to all authorities that provide these vital services.
	XThe introduction of a minimum increase of 4 per cent will make a big difference to a number of authorities. It represents an extra #3 million for Halton, #2.4 million for Middlesbrough; nearly #8 million for Liverpool; #3 million for Nottingham; and #3.5 million for Leeds—money over and above that which they would have received under a simple application of the formula.
	XBut a minimum level has to be paid for. Some of the cost will be met from placing a ceiling on the grant increases to be received by authorities in each group. These will be 7 per cent for authorities with education and social services responsibilities—up from 6.5 per cent last year; 4 per cent for fire and police authorities; and 10 per cent for shire district councils. However, these ceilings do not fully meet the costs of bringing education or social services councils up to a minimum of 4 per cent.
	XThis year, councils had their increase scaled back to pay for the introduction of a minimum level. Scaling back would mean that some of these authorities that have raised concerns about their level of funding—like Birmingham, Oxfordshire, Worcestershire, Kent, Nottinghamshire, Derbyshire and Warwickshire which today get a good settlement—would see a reduction to provide for other authorities. Birmingham would lose #1.1 million; Oxfordshire would lose #836,000; Worcestershire would lose #439,000; Kent #2.14 million; Nottinghamshire #659,000; Derbyshire #875,000; and Warwickshire #405,000.
	XI have listened to the views of honourable Members, parents, teachers and those with responsibility for care of the vulnerable. I believe that it would be unfair to scale back those increases. I have therefore decided to put an extra #41 million into the revenue support grant so that there will be no reduction in grant for those getting an increase which is below the maximum. For the other two groups, authorities between the minimum and the maximum will see their grant increase scaled back to pay for the floor for their group. For police authorities and fire authorities, my right honourable friend the Home Secretary and I are putting an additional #5.5 million into revenue support grant. That enables us to set the floor for that group at 2.3 per cent without imposing an unduly high scaling factor.
	XFollowing representations made on last year's settlement, I also propose to promote capital investment by excepting—from the floor and the ceiling limits—grant increases that result from new capital spending allocations. Salford will get an extra #1.7 million; Hertfordshire an extra #1.4 million; Bristol an extra #0.9 million; and North Lincolnshire an extra #0.6 million.
	XWith these grant increases and the stability provided by minimum increases, there is no reason why we should see large increases in council tax next year. I have laid regulations before this House to ensure that taxpayers can see clearly by how much their council tax has changed for each tier of authority. From next spring this will be shown up-front on the bill, not hidden away in a leaflet. Our longer term policies for council tax will be set out in the forthcoming local government White Paper. The increases in general grant will be matched by further good increases in the grants we are providing for specific initiatives. For example, in the next financial year, I can confirm that, as previously announced, there will be #300 million for the neighbourhood renewal fund which will enable councils with the most deprived areas to tackle the real problems they face. I can also confirm that #200 million will be available to help local authorities build care capacity, which will be a significant contribution to allowing them to improve personal social services where we recognise councils face real pressures.
	XLocal authorities are a vital part of our democratic system. People rightly expect a great deal from their own council. That is why, since we came to office in 1997, we have increased grant to local authorities by #11.3 billion—a real terms increase of over 20 per cent. This stands in stark contrast to the final four years of the Tory government which saw a real terms cut in grant of 7 per cent.
	XI believe that this settlement is an important step in ensuring that local councils can meet the needs and aspirations of the communities that they have been elected to serve. It shows that we value local government and the services they provide. This settlement provides the means by which local services can be improved; public services meeting the needs of our people; local councils again recognised as a democratic tier of government. That is the way forward for local authorities. It is the approach which is at the heart of today's Statement. And, as such, I commend it to the House".
	My Lords, That concludes the Statement.

Baroness Hanham: My Lords, may I first thank the Minister for bringing this Statement to the House today. In passing, since we are dealing with local government, I declare my usual interest as a member of a local authority.
	The total settlement amounts to an increase of 7.4 per cent over last year. However, 3 per cent, or #10.8 billion of that increase, is again being devoted to special and specific grants. Many of these will involve expensive bidding procedures, meaning that once again the grant will continue to be hypothecated or directed in many areas.
	Much of the money will go to a limited number of authorities, not to all. So others will either be denied it or will have to spend it on priorities which are not theirs. It also belies the importance placed in the ministerial Statement on local government democracy. This will not be seen as generous or helpful by local authorities.
	Does the Minister recognise—the Statement suggests that he does—that the sooner a grant distribution is introduced that is seen to be transparent and fair, the better? I hope that the outcome of the current review, over which there is much concern, will prove to be just that.
	This settlement is a reflection of the expectation in the Chancellor's pre-Budget Report that council tax rises will be at least 6.7 per cent, more than three times the level of inflation. That rise alone will come about solely as a result of the Treasury's determination. Does the Minister agree that as a consequence an increase of that size is the lowest that any council will be able to contemplate making? Indeed, does he accept that most councils are already suggesting that they will have to raise council tax by at least 10 per cent to cover all the expenditure that they now incur?
	The difficulties that will beset local authorities in reaching decisions on council tax levies will be predicated by the extra burdens that are continually introduced during the year. They are under-funded at that stage and insufficiently funded in the annual settlement.
	Although the Minister points to education and social service authorities receiving an extra 4 per cent, will he say whether the pay settlements for teachers in particular but also those for other local authority workers will be fully funded? If not, there is a potential cost to be borne by the council tax payer over and above the 4 per cent figure. Does he also recognise that many local authorities are already spending well above their standard spending assessment on those services? The additional sums are already entirely borne by the council tax payer.
	Does the Minister accept that there will be great variation in council tax charges because of the vagaries of the systems and the continuing changes to methodology, which switch resources within the revenue support grant? Does he also accept that as a result of previous decisions over the lifetime of the previous Parliament, shire counties lost an estimated #700 million in funding and London local authorities more than #450 million, and that such problems will continue under today's settlement?
	Does the Minister accept that social services are currently under-funded overall by some #1 billion, but that there is now enormous pressure on them to provide facilities and care for the elderly to enable them to be looked after in their own homes or, in particular, in care homes? Does he understand that the regulations and costs that are placed on private homes are driving them out of existence and that, if the pressure on hospital beds is to be relieved, such facilities will again have to be provided by local authorities? While the sum of #200 million is to be welcomed for personal social services, it will not, I fear, go very far towards achieving the capacity that is now necessary.
	There are many extra burdens from Xbest value" to fridge recycling and including concessionary fares, the extra priorities associated with the homeless and the increasing number of homeless people, landfill taxes, the cost of asylum seekers, the changes to the area cost adjustment, which was meant to help authorities with the highest costs but is still not at a level that reflects that and is subject to changes that switch resources from one type of authority to another, and the abolition of ACT, which has meant that councils have had to increase substantially the amount that they contribute annually to support their pension funds. Does the Minister realise that most of those burdens drive most council leaders to despair? All of those factors increase the costs of councils and consequently the amount paid by council tax payers.
	I am sure that the Minister will accept that local authorities want stability of finance and the means to provide the services for which they are statutorily responsible at the best standards. This settlement no more does that than previous ones. One can only hope that the current review produces something much more satisfactory for next year and that within it we lose all temptation to work within floors and ceilings. I am certain that anyone listening to the Statement finds that an almost incomprehensible concept, like the relationship between the total standard spending assessment and what councils ultimately receive in grant.
	Despite the Minister's reassuring words, the Statement does not have sufficient in it to ensure that local government can carry out its duties to meet the expectations that Ministers and—far more importantly—the public have of it. Every year, the Government say that they have provided sufficient resources to avoid steep council tax increases. My suspicion is that this settlement will be as hollow as was last year's.

Baroness Scott of Needham Market: My Lords, I, too, thank the noble and learned Lord for repeating the Statement. In doing so, I declare my interest as an elected member of Suffolk County Council.
	The most noteworthy part of the Statement is the commitment, at long last, to a wholesale review of local government finance. It also contains the explicit recognition that we have been labouring for years under a scheme that is not fair, transparent or just. Can the Minister tell us about the way in which the review might take place? Will it be under the auspices of the White Paper, which is expected soon, or will there be another mechanism? How will local government—individual authorities and the Local Government Association—be involved? Indeed, how will noble Lords and Members of another place, many of whom have much expertise in local government, be involved?
	We on these Benches believe that the settlement is reasonable for local government, and we welcome that. Nevertheless, some key issues face local authorities this year, the most pressing of which lie in the area of social care. I should appreciate it if the Minister would spend some time addressing those most pressing social care issues. In recent years, that area of our budgets has been under the greatest pressure. At one end of the scale, children's services are rightly having to develop much more stringent regimes for child protection and for dealing with greater numbers of children. The failure of a very few to do that resulted in the tragic cases that we have seen recently. At the other end of the scale, there has been an increase in the demand for nursing care. The number of people over 80 in this country is set to rise by 68,000 in the coming year.
	The Government's recent announcement of extra cash to help prevent bed blocking is welcome, but it falls far short of the #300 million to #400 million that local government believes will be needed this winter to prevent a crisis. Even so, that does not address the underlying structural problems within the social services sector. If the Government are serious about reforming the health service, they need to get to grips with the health provision aspects of local authority work.
	Across the spectrum, social services departments are having to deal with increased demand, greater need, market problems in dealing with capacity, cost increases and problems with recruitment and retention of skilled staff.
	As we have heard, there is a growing problem with local authority pension schemes, which started a few years ago and which, like almost everything else, have been affected by the events of September 11th. Downturns in the equity market mean that councils have to increase their contribution to the pension fund. In a cash-limited budget, there is only one way to do that—by reducing expenditure on other services.
	On pay settlements, although the settlements tend to keep pace with inflation, wages tend to run ahead of it. That is because local authorities have to respond to equal pay issues and to recruitment problems. It is paradoxical that in areas such as social services, in order to attract and retain high quality staff we need to pay them more. But when we do so, we can afford fewer staff.
	The environmental, protective and cultural services block is, as ever, the Cinderella of the settlement, despite the fact that quality of life issues fall within that block. The Prime Minister recently referred to it as Xliveability". As local authorities move towards a more community-based planning approach, that budget comes under the most pressure to deliver small-scale environmental improvements, which mean much to local communities.
	During the Government's first two years in power, when adherence to Conservative spending plans led to very tight settlements for local government, they made more money available to councils, which we welcomed. However, the thread that links this Government with previous governments is the continued dominance of central government over local government's decision-making processes. The landscape is all too familiar. When functions are transferred to local authorities, such as in the Travel Concessions (Eligibility) Bill, enough money never comes with them. When functions are transferred away, there is always a suspicion that the amount that is transferred is too high. We on these Benches will look with interest at the small print and the proposed transfers to the learning and skills councils and the National Care Standards Commission.
	The current pressure to passport SSA increases for education severely limits local authority choice and discretion. It also produces serious funding issues for the non-education services. In reality the size of the budget means that social services have traditionally borne the brunt of those choices.
	I turn to the theme of local authority expenditure that is controlled from outside. I have a question on the snappily entitled council tax benefit subsidy limitation scheme, which is almost as difficult to explain to people as it is to say. It represents a further control of central government over local government and does not fit in with any notion of transparency or accountability. The Statement is quiet on that matter, but can the Minister say whether the Government have any plans to remove it?
	Once again, a major feature of the settlement is the continued rise of the specific grant. That stood at 4.5 per cent of the total budget when the Government came into power. Currently it is moving to 9.6 per cent, and we understand that there are plans to increase it to as much as 15 per cent. When the matched funds that have to be found are added in, that represents a huge control by central government over sums that used to be entirely within the remit of local authorities. Extra money is always welcome, but such a means of distribution creates further centralisation.
	Councils have to direct their activities towards meeting government priorities rather than their own. Precious resources are being poured into the development of bids, some 50 per cent of which we know will not be successful. Most cynically of all, a myth is created that a particular authority has failed to win a bid rather than the Government failing to fund it. We shall read the small print with interest and look forward to hearing the Minister's replies.

Lord Falconer of Thoroton: My Lords, I thank the noble Baronesses for their guarded welcome to the Statement. They have made a number of points about the detailed provisions with which I shall deal shortly. The noble Baroness, Lady Hanham, raised the matter of ring-fenced grants and indicated, in effect, that she disliked the trend. As she admitted, a large majority of government support for local authorities is not ring-fenced. Ring-fencing has been increasing as a proportion of total government support, but that reflects partly a welcome increase in grants. Ring-fencing makes sense in certain circumstances. For example, in introducing new policies, ring-fenced funds can be targeted on selected projects.
	We know that the view expressed by the noble Baroness is the view of local authorities. They are concerned by the increase in ring-fencing over the past few years. We too want local government to continue to be responsible, as much as possible, for spending decisions, so we need to limit ring-fenced grants to areas where they are absolutely necessary. The White Paper on local government, which will be published soon, will set out our position on freeing up local government and will address the issue of ring-fenced grants.
	The noble Baroness, Lady Hanham, raised the issue of council tax. Every year we see scaremongering about council tax increases and every year wild forecasts are made in the press and sometimes even by opposition parties. But they often turn out to be wrong. As the noble Baroness knows, local authorities set council tax. Unlike the previous administration, we do not tell local authorities the level at which to set their council tax. Good grant increases and stable grant settlements provide a good landscape within which councils can address the issue of the level of their council tax.
	Ultimately, such decisions are taken by local authorities after consulting their local electorate and taxpayers. On what is an acceptable council tax increase, councils should look to the views of their local people and not to Ministers. Views on increases in council tax will be decided at the ballot box.
	The noble Baroness, Lady Hanham, said that there will be variations between councils, which is true. The level of council tax will depend on the approach that each council takes to that position. The noble Baroness also referred to the position of social services. The total support for social services rises by 6.5 per cent—#684 million—for 2002-03, which is on top of a rise of #576 million—6.2 per cent—in 2001-02. It brings the total increase under this Government to approximately #2.7 billion. Make no mistake, we are well aware of the pressures on social services. As those figures indicate, we have given significant increases to social services, but constant discussion is required with local authorities, the Department of Health and local government bodies to work out where the pressures are and how best to deal with them. We do not in any way seek to underestimate the problems, but those figures indicate that extra money has been provided to that hard-pressed area.
	The noble Baroness, Lady Hanham, went through a number of cost pressures in relation to local authorities. There are cost pressures and we hope that this settlement will make a contribution towards meeting them. She raised the issue of education. On the education budget, the increase is enough to cover all the cost pressures on local education authorities next year: rising pupil numbers, increased contributions to the standards fund and, taking up the point made by the noble Baroness, pay and price increases.
	I turn to the points raised by the noble Baroness, Lady Scott. On local government finance, she welcomed the fact that this is to be the last year in which the system will be used. As she rightly said, it is a system that has been the subject of persistent and justified criticism for a long time. She is aware that we have already issued a consultation paper on local government finance. We are discussing options for the reform of the grant distribution system with the local authority associations and representatives of the local authorities. That process has been under way for some time and next year we shall announce our proposals. The noble Baroness also raised the issue of social services. I dealt with that issue when I replied to the noble Baroness, Lady Hanham.
	XLiveability" is an important area. Many local authorities say that from time to time that part of the grant is squeezed, but other local authorities have proved that incredibly impressive improvements can be delivered in the public space to the benefit of those who live in the local authority area.
	The noble Baroness, Lady Scott, also raised the issue of bidding and said that there are too many funds for which bids have to be made. We agree that there is much to be said for streamlining the number of funds for which one has to bid. I hope that that answers all the questions raised by the noble Baronesses.

Lord Bradshaw: My Lords, I declare an interest as a county councillor on Oxfordshire County Council and as vice-chairman of the Thames Valley Police Authority, both of which are affected by the Statement.
	There is a crisis in social services and in hospitals. The hospitals are full. Recently two community hospitals were closed and one was severely reduced in size. Beds in hospitals are blocked because social services cannot afford the prices charged by the care homes, many of which are closing because we cannot afford to buy the beds in them.
	If the Government are serious about doing something for the National Health Service, they must solve the problem in social services. An extra #2 million would be useful, but it will go nowhere against the size of the problem that we face. Not only is this problem weighing down the county council, but it is also weighing down every other service that the county council provides. Those services have to be pared back so that the county council can afford the social services. Even so, we are overspending substantially against the Government's criteria. We need assistance. I ask the Minister whether some satisfaction will be given to councils like Oxfordshire to deal with the problem.

Lord Falconer of Thoroton: My Lords, that is an important point. It was raised by the noble Baronesses, Lady Hanham and Lady Scott. I have answered it. We have increased next year's amount by #680 million. Having said that, we recognise that the service is under great pressure. Therefore, we are constantly in discussion with the LGAs about how best to deal with those pressures. I do not underestimate the problems in relation to that important area. As I say, we have increased the amount by 6.5 per cent in cash terms for next year. That is 3.9 per cent in real terms, which is #680 million.

Lord Smith of Leigh: My Lords, I declare an interest as the leader of a council which is not yet, I can assure the noble Baroness, Lady Hanham, in a state of despair. We could certainly raise half a cheer in relation to the Statement that my noble and learned friend has given on behalf of the Secretary of State.
	My noble and learned friend will recall that in July he attended the conference and a dinner of another organisation of which I am a member—SIGOMA. That represents the most deprived metropolitan areas of the country. Its view is that the current system cannot go soon enough. We get an average of #140 per head less on SSAs, yet end up paying 15 per cent more on council tax. I am sure that we do not need any lessons or any advice on local government finance from the party opposite in view of its record in running it for many years when in power.
	I want to press my noble and learned friend on the question that the noble Baroness, Lady Scott, asked him. What is the status of the council tax benefit limitation scheme after today's announcement? One of the odd things about the settlement is that the money which the Government say is in the system—the total standard spending—is an absolute fiction. It does not represent the total amount spent by councils up and down the country. It is about time that the figures were brought into line with this fiction which the Civil Service pretend we spend. Perhaps we can then have a system that is less distorted.

Lord Falconer of Thoroton: My Lords, can I respond to the second point by saying that it is noted. As to the first, the council tax benefit limitation scheme, I apologise for not answering the question of the noble Baroness, Lady Scott. I ask my noble friend and the noble Baroness to wait a little longer until the local government White Paper is issued.

Lord King of Bridgwater: My Lords, having sought to grapple with some of these problems in an earlier incarnation, I am not just astonished but enormously encouraged if we are to have a system introduced that will be transparent, fair and just. I look forward to the realisation of the categorical pledge given by the Minister that that is what we shall receive next year. Having said that, I agree very much with the comment made—having had to make this Statement on a number of occasions in another place—that a great many of the numbers are fairly meaningless and usually incomprehensible to anyone listening to them.
	One feature emerges clearly from the Statement and the questions. I endorse what the noble Lord from the Liberal Democrat Benches said. When I departed from my constituency earlier this year, it was to the accompanying sound of the closure of private care homes and the serious crisis that that presents. In putting forward these proposals, can the Minister say what assessment has been made of the impact that the amount of money announced will have in terms of the provision of greater facilities in private care homes and for the elderly?

Lord Falconer of Thoroton: My Lords, I cannot give the precise figures in relation to what the assessment is. An assessment obviously has been made in relation to it.

Lord King of Bridgwater: My Lords, perhaps the Minister will write to me.

Lord Falconer of Thoroton: My Lords, I shall certainly write to the noble Lord. As I have said in answer to all the questions about social services, we fully recognise what the pressures are at the moment.

Lord Shutt of Greetland: My Lords, I, too, declare an interest as a member of a local authority—Calderdale Metropolitan Borough Council in Yorkshire. Looking carefully at the words used about Xlocal authorities" being Xa vital part" and Xlocal government being valued", I wonder when Xlocal" will be put back into local government. From my reading of what I have seen, the die is cast as far as concerns education and social services and highways. Members of local authorities will make spending decisions in other areas.
	The noble Baroness, Lady Hanham, said that it looked as though council tax rises would be in the region of 6.7 per cent, which would be two or three times the level of inflation. Will the Minister express his view as to what the percentage will be? Is that position right or is it some other figure? If it is right, can he give his view to those members who make these decisions? They are saying to their local electorates, XWe must lift council taxes by 6 or 7 per cent and therefore we must look for some reductions". Where do they look for the reductions but in the areas where they have discretion—local amenities, whether it is parks and gardens, museums or theatres or grants to voluntary organisations? What kind of advice would he give to those members who are exercising their discretion? People in those areas are saying to them, XLook, you are the council. You send out the rate bills. It is not the Government who send them out. Why are you sending this out with two or three times the level of inflation on it?"

Lord Falconer of Thoroton: My Lords, the first part of the noble Lord's question related to Xlocal" community leadership. We would be very keen to see local authorities as local community leaders. By that I mean, identifying the priorities for the locality for which they are the elected local leaders. That will be dealt with in much more detail in the local government White Paper.
	As to levels of council tax rises, that is a matter for local community leaders to decide upon. They must decide where their priorities lie in the light of the settlement announced today. They must make the decisions about what level the council tax should be at. They should do it having regard to what their local electorate regards as a sensible level at which to set the local council tax. It is plainly not for me to speculate as to what the average level may be. Nor is it for me to say to local authorities at what level they should set it.

Lord Shutt of Greetland: My Lords, before the Minister sits down, will he not agree that the Statement made today must have some degree of influence on what those local leaders have to decide?

Lord Falconer of Thoroton: My Lords, I agree with that, yes.

Baroness Carnegy of Lour: My Lords, perhaps I may ask one question. I may be wrong, but I understood that when we legislated in your Lordships' House about the community care of the elderly, large sums of money were going to be paid by the health service for nursing as opposed to community care. How is that health service money treated in this Statement? Is it treated as part of the increase that local government gets, in which case it is somewhat fictitious, or is it simply not there because it is in the health service budget? Can the Minister answer that question? I was waiting for it to be asked. I thought that it would come from somewhere. It interests me following all the discussion we had about community care.

Lord Falconer of Thoroton: My Lords, I think that I should be very careful before I answer that question. Can I write to the noble Baroness?

Anti-terrorism, Crime and Security Bill

House again in Committee on Clause 94.

Lord Dixon-Smith: moved Amendment No. 157A:
	Page 54, line 13, at end insert—
	X( ) Where a person who has been required by a constable to remove an item under subsection (2)(a) claims to be female—
	(a) removal shall not be required until a female officer is present; and
	(b) prior to the removal of the offending item, the person required to remove the item shall be informed that there is a fixed penalty of #50 if they have made a false declaration of gender."

Lord Dixon-Smith: I have slight difficulty in my mind about Amendment No. 157A and the opinion of the Committee. However, my motivation in tabling the amendment is that the Bill gives power to remove items of clothing used for disguise purposes in potentially riotous situations. I was not clear about the drafting of the clause and to that extent this is a probing amendment. I am unclear as to whether the normal protections—for example, searches and the removal of clothing would in other circumstances normally be undertaken only by people of the same sex—would apply in relation to this particular matter. It is apparent that Clause 94 does not make that a specific requirement as in other parts of the Bill.
	Having faced that hurdle, it is not impossible to envisage somebody, who for religious reasons is sensitive about these matters, quite inadvertently being caught in circumstances where the police require the removal of facial cover. This could create problems of great sensitivity for people in that situation. I believe that we should do what we can to ensure that in so far as possible in the circumstances their sensitivities are acknowledged. That deals with the motivation behind the first part of my amendment.
	I have recently been exposed to masked demonstrators. At first sight—even half an hour later—I could not tell whether they were male or female. I thought that my senses were reasonably gender-attuned. When people wear black head coverings which also conceal the eyes and modern clothing that is generally shapeless and formless it is difficult to tell whether they are men or women. I sought to deal with the situation where an individual refused to remove a head covering on the grounds of sensitivity and tried to delay proceedings by claiming to be a woman when he was not. That gives rise to paragraph (b) of the amendment which would make a false declaration of gender a fixed penalty offence in that situation. I could think of no other way to do it. I may be told that I have a nasty, suspicious mind; if so, I am sorry. However, I believe that it is a valid point to make. More importantly, I believe that this is a valid question to put to the Minister. This appeared to be the most appropriate way to do it. I beg to move.

Lord Rooker: I apologise to the noble Lord for being a few seconds late. The order was changed and I was half-way down the stairs. I take the noble Lord's point, but I am fairly certain that I can satisfy him.
	I return to one matter to which I referred in an earlier debate. The code of practice for the Police and Criminal Evidence Act provides guidance in this area:
	XWhere there may be religious sensitivities about asking someone to remove a face covering using the powers in Section 25 of the Crime and Disorder Act 1998, for example in the case of a Muslim woman wearing a face covering for religious purposes, the officer should permit the item to be removed out of public view. Where practicable, the item should be removed in the presence of an officer of the same sex as the person and out of sight of anyone of the opposite sex".
	That is the guidance in the code of practice which for practical purposes is about as clear as it could be.
	We are talking about an outer layer of clothing—a face covering—which by any definition is not an intrusion into privacy. I also said in earlier debate that immigration staff had no difficulty about it. The amendment refers to someone who claims to be female. There are people who come to this country for operations and present their passports at ports. At first sight the position is not quite clear. We have no problems with that. We treat people sensitively and humanely. As long as we can make the identification it is perfectly all right. We have not experienced any difficulties about that.
	There is no power of forcible removal under Clause 94. The police may require the removal and it is an offence not to comply, but I do not believe that there is any difficulty in relation to this issue. There is power to use force in a police station to remove covering for a photograph, but that arises under Clause 92. The guidance to the PACE code of conduct will take full account of the issues which have been raised. As the noble Lord said, this is a probing amendment. I am not aware of any concern about this matter. I accept that it is a matter of sensitivity. It will be dealt with in the most sensitive way at the time the police make such a request, for which they must have reasonable grounds in the first place.

Lord Dixon-Smith: I am grateful to the Minister for his reply. To a certain extent the noble Lord puts my mind at rest. I am not quite sure that he has fully answered the question whether the Bill as drafted supersedes the current code of practice which was drafted to deal with a slightly different situation. One must face the situation that the circumstances in which these powers may be used are somewhat unpredictable and haste may well overcome politeness. It was with that in mind, and to hear the Government's response, that I tabled the amendment.

Lord Rooker: I apologise if I have not made it clear. The code of practice is to be rewritten. The code will be subject to consultation in the normal way early next year and will be fully worked up. The code will be revised to incorporate all the additions in the Bill. We shall double- check it to put beyond doubt that we can deal with the issues raised by the noble Lord. The existing code already provides guidance to police in this area, but we shall check it and consult upon it to make sure that we have got it right.

Lord Monson: Referring to the second leg of the amendment, can the Minister tell the Committee what would happen if a person purporting to be a woman was taken to a police station, asked to remove a head-dress and found to be a man? As the law stands, would that be an offence? I suppose that the person would be detained for further questioning because it would obviously be a suspicious thing to do, but would it be an offence?

Lord Rooker: I cannot answer the noble Lord's question without advice. However, the purpose is to establish the identity of the person so that the police can pursue their investigations. The person may lie about age, gender, nationality or other matters. I suspect that in the case referred to, other than wasting a little police time in the investigation it would not be an offence. But the main purpose of the provision is to identify the person concerned. I suspect that that does not answer the noble Lord's specific point, but I am not qualified to do so. One is amazed to discover what is not an offence. Until yesterday it was not an offence for anyone to own a nuclear weapon! It is not an offence to dress in another gender's clothing, but that is not the issue. The purpose is to identify the person.

Lord Elton: I believe that when the original code of conduct was formulated there was some form of parliamentary exposure. Can the noble Lord tell me, perhaps later, whether this matter will be subject to such exposure, or will it simply form the subject of discussion with organised bodies?

Lord Rooker: I am speaking off the top of my head. I have nothing in front of me. If it were subject to parliamentary exposure in the past, after the way we have put this Bill through the House I shall use my best endeavours to make sure that it is subject to parliamentary exposure. However, I suspect that it is part of PACE that the code of practice is subject to parliamentary exposure.

Lord Dixon-Smith: I am most grateful to the Minister. The supplementary debate, if I may so describe it, has gone a long way to put my mind at rest. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 158 to 158A not moved.]
	On Question, Whether Clause 94 shall stand part of the Bill?

Lord Renton: Before my noble friend intervenes, perhaps I may say a few words. I remember so well a murder case some years ago in which I prosecuted. The murderer at the time he committed the murder was wearing a beard. In order to disguise himself and prevent himself from being found out, he removed the beard after he had committed the murder.
	This strange clause, which in my opinion is quite unnecessary—

Lord Rooker: I can give the answer before the question is put. A beard—facial hair—does not qualify as an item under this legislation.

Lord Renton: I merely give that as an illustration of the kind of confusion that can arise if we try to deal with matters of this kind by legislation. The courts already have power to take note of, for example, a change in disguise. This clause goes into detail which is unnecessary because the courts have the power to take note of anything which a constable may have done in the particular circumstances, or which anyone failed to do. As regards emergency legislation, to try to introduce clauses which supplant the powers that the court already has is unnecessary. I hope that my noble friend will agree and argue against the retention of Clause 94.

Lord Dixon-Smith: We tabled notice of our opposition to Clause 94 with the same motivation as led us to have the earlier debate on the first group of amendments. These clauses amend the previous legislation, the Police and Criminal Evidence Act 1984. In the new circumstance, the power to require the removal of facial covers and so forth is enormously expanded.
	The provision could actually apply to any demonstration or gathering and not merely to disturbances that might be related to terrorist activity. The difficulties we have were expressed in arguments that I have already enunciated once today and it is superfluous to enunciate them a second time. That is the reason why this and some of the following clauses are before us.

Lord McNally: We share the concerns, not just on the Question of whether this clause shall stand part, but in relation to later clauses. Much of the earlier debate covers the dilemma that has gone right through the coverage of the Bill. I refer to the Government's desire to respond properly and with due urgency to a real threat from terrorists and concerns expressed by learned Lords and others that they are trying to sweep into this Bill powers that are neither emergency nor directly affect terrorism.
	As regards this particular stand part Question, I might throw a line to the Minister. Things have changed a great deal since he was on the other side of the line to the noble Lord, Lord Callaghan, in Grosvenor Square all those years ago. The noble Lord, Lord Callaghan, as Home Secretary, was giving moral support to the Metropolitan Police when Grosvenor Square was filled with demonstrating young people, among whom the noble Lord, Lord Rooker, counted himself today.
	That is a reminder of a little piece of history and I am sure that the noble Lord, Lord Callaghan, will take note of it in Hansard. The fact is that protest has moved on since those innocent days. Face coverings are used in the most sinister and intimidatory ways, just as the Internet is used to mobilise and organise, and mobile telephones are used to direct during demonstrations. They are highly sophisticated operations which the early protestors would hardly recognise.
	I understand the need to acknowledge the fact that the nature of protest has changed. However, that does not get us away from the fact that the ways in which protestors and terrorist threats are dealt with are different; they should be dealt with at different paces and with different kinds of parliamentary scrutiny. I think this doubt will continue through many of the issues that the Government are talking about.
	I think they would find sympathy on these Benches, but not for a response in an emergency to a terrorist threat. That is why we have doubts that clauses such as Clause 94 should remain in this Bill.

Lord Desai: Perhaps I may say as someone who was in Grosvenor Square at least on two occasions, not very far from a police horse as well—that was a very existential moment in my life—that at the time those demonstrations were not at all described as peaceful. At the time they were thought to be very sinister and dangerous.
	It is easy now to say, XOh yeah, at that time we were benevolent, everybody was happy and had flowers in their hair". It was not like that at all. Every Home Office Minister at every demonstration described those demonstrations as sinister. That is what the Home Office is for and that is why we have a Home Office. I think, in retrospect, the attitude to major demonstrations in the past couple of years was very alarming. The Government are frightened of people just demonstrating.
	There may be more anarchists—they were all Trotskyites or communists in the 1960s—but it remains true that many demonstrators, whether masked or not, are not violent. They are not intimidating anyone, unless the police take that view. If the police decide to hem them in, as happened last May, problems occur and then we have arrests.
	I do not want to say much more than that, but in my view this particular part of the Bill has elevated demonstrators into terrorists, or has removed much of the difference between them. From being intimidating masked animal liberation fighters, to make them into Al'Qaeda terrorists, is a leap of several degrees. I think that we shall regret that. That is all that I can say. Sadly, the provision will pass, but we shall regret it. It is not a minor extension of existing powers, it is a major attack on people's right to demonstrate.

Lord Rooker: I disagree with the last words spoken by my noble friend Lord Desai. Clause 94 is not major. It will become new Section 60AA in the Criminal Justice and Public Order Act 1994, as amended by the Crime and Disorder Act 1998. The 1994 Act itself gives police powers to require the removal of face coverings worn for the purpose of concealing identity, and to seize any such items. Clause 94 amends the face-coverings power only so that an authorisation can be given where an inspector reasonably believes that activities may take place in an area that are likely to involve the commission of offences. That is a modest and proportional extension of existing police powers.
	I should not have raised the issue in the first place—I realise that—but I think that my noble friend Lord Callaghan of Cardiff would be proud to be part of the Labour Government that ensured that this country was not sucked into the Vietnam War, and that issues were freely raised and campaigned about. I realise how those demonstrations were described in those days, but I do not remember anyone wearing a face mask. A lot of them became television stars. Some of them have made an industry out of it for the past 30 years—I could name one person, but I shall not.
	In a mature democracy, we should embrace people who want to demonstrate and air their views; the point is how they go about it and their effect on others who are neutral. We are here dealing with intimidation and possible criminal activity. That is why Clause 94 is wholly justified.

Lord Dixon-Smith: I am grateful that we have had this discussion, if only because I learnt that the noble Lords, Lord Rooker and Lord Desai, appear to have enjoyed the same riotous youth. That is interesting.
	We have gone over the principles of the debate sufficiently this afternoon, so we should not pursue the detail any further. We must think carefully about what the Minister said about the clause and related amendments.

Clause 94 agreed to.
	Clause 95 [Powers to require removal of disguises: Northern Ireland]:

Lord McNally: moved Amendment No. 159:
	Page 55, line 39, after Xof" insert Xterrorist"

Lord McNally: It occurred to me that we might make separate arrangements for Government Members who want to announce that they were in Grosvenor Square in 1968. I cannot believe that the Minister was talking about the Foreign Secretary when he mentioned someone who has made a career about his presence there. I am sure that that was furthest from his mind.
	The Minister of State for Northern Ireland, introducing the clause in the Commons, said:
	XI want briefly to put it on record that the Government are taking this valuable opportunity to extend"—
	these powers—
	Xto Northern Ireland".—[Commons, 26/11/01; col. 765.]
	We are worried that the Government have taken opportunities to sweep powers into the Bill. As the noble Lord, Lord Dixon-Smith, said, that is a recurring theme and this is just one more example of it. I beg to move.

Lord Rooker: I referred to Amendments Nos. 158 and 159 earlier. We have to legislate separately for Northern Ireland, but the issues are the same, so I should only repeat myself if I gave again the answer that I gave then.

Lord McNally: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 159A not moved.]
	Clause 95 agreed to.
	Clauses 96 and 97 agreed to.
	Clause 98 [Jurisdiction of MoD police]:

Lord Dixon-Smith: moved Amendment No. 160:
	Page 59, line 45, after Xoffence" insert X, which he might reasonably assume to be terrorism"

Lord Dixon-Smith: Amendment No. 160 is grouped with Amendments Nos. 161, 162 and 163. They raise the same point in relation to Clause 98, which deals with the Ministry of Defence Police, and Clause 100, which deals with transport police, as were raised in the first group of amendments that we discussed today. It is superfluous to repeat everything that was said then. I simply reiterate that those arguments are as valid for these amendments as they were then. I beg to move.

Lord Wallace of Saltaire: I rise to support the amendment. It was with a sinking feeling that we found the clauses in the Bill. They are highly familiar to me as a former defence spokesman for my party—they are, indeed, exactly the same as the clauses that we were discussing under the Armed Forces Discipline Bill just before the election. We have a range of fundamental questions about whether the provisions are necessary to the Bill. The amendments seem to us to be the absolute minimum that we can do to link the provisions to the anti-terrorist procedures, rather than simply slipping through something that failed to be passed before the election.

Earl Attlee: I apologise for not flagging up the issue that I want to raise by means of an amendment. I hope that the Minister will be able to give me an answer. If not, I am sure that the Committee will understand why.
	The Minister will have thought carefully about introducing the provisions for the MoD Police, but what about the service police—the Royal Military Police, the RAF Police and the Royal Naval Police? I appreciate that they must be the subject of a reserved power under the affirmative resolution procedure, but did the Minister consider the position of the service police when he discussed the Bill with colleagues?

Lord Bradshaw: I rise to speak to the amendment concerning the British Transport Police. The British Transport Police is a substantial body of people spread throughout the country. They have long laboured under the disability that if a miscreant is found on railway premises, they are unable to pursue him beyond the boundary fence. They cannot chase someone into the street or over the fence, because their powers as police constables lapse when they reach the open air, as it were. Unlike the Ministry of Defence Police, or the nuclear police force, they are trained at Ashford as ordinary constables. Basically, they are an unarmed police force.
	The Minister told us that there was a trawl of measures from the shelves of various ministries and that some of those measures have been put into the Bill. For reasons of safety, it is important that transport police officers should be given an extended jurisdiction so that they can pursue miscreants beyond the boundaries of railway premises. While I fully support the premise that the extension of powers to combat terrorism should form the sole impetus of the Bill, we have long awaited an extension of the area of jurisdiction of the British Transport Police. I hope that, whatever decision is taken as a result of the amendment moved by the noble Lord, Lord Dixon-Smith, the power of the British Transport Police to act as constables with the same jurisdiction as other constables will be introduced, subject to the approval, where it is appropriate, of the local police force.

Lord Faulkner of Worcester: I am delighted to follow the noble Lord, Lord Bradshaw, who made similar remarks in a debate on an Unstarred Question which I tabled on 13th November, which drew attention to the consultation paper on the future of the British Transport Police entitled Modernising the British Transport Police. The provision in Clause 100 of the Bill is not a last-minute proposal; rather it is a power that has been needed for a long time. At present the proposal is moving through a process of consultation and the Government's proposals for extending jurisdiction have received widespread support both in this House and outside. Like the noble Lord, Lord Bradshaw, I hope that there will be no weakening as regards the inclusion of Clause 100 in the Bill.
	In the debate on the Unstarred Question the noble Lord, Lord Condon, described the BTP as an,
	Xefficient and very effective police force which plays a valuable role in a number of areas of public safety".—[Official Report, 13/11/01; col. 532.]
	He cited the combating of terrorism as the first of those areas, where the BTP is second only to the Metropolitan Police in the number of terrorist incidents with which they have had to deal over recent years.
	For all those reasons, it is important that we support Clause 100 and take advantage of the provisions of the Bill to extend the jurisdiction of the British Transport Police in order to allow them to carry out their job outside railway premises. It must be done in order to protect us all.

Lord Bach: I am grateful to noble Lords for the way in which the amendments have been introduced. Perhaps I may deal first with the Ministry of Defence Police and then move on briefly to the other police forces that have been mentioned in the amendments grouped with Amendment No. 160. However, I should say now that I am grateful to the two noble Lords who have spoken in support of Clause 100 in the Bill.
	To return to the Ministry of Defence Police, the amendments arise out of the provisions of Clause 98. The purpose of the clause is to permit the MoD Police to act outside their normal jurisdiction in certain defined circumstances. I should remind the Committee that the MoD Police are a properly constituted civil police force. We are not discussing here the powers of the military police, quite properly referred to by the noble Earl, Lord Attlee. I shall respond to the question he put to me in his intervention; that is, whether the Government would consider extending powers to the service police forces—the provost forces. The answer to the noble Earl's question is no. We have considered the matter, but we do not think that it would be appropriate. Services police are made up of service personnel with authority only over personnel subject to the service discipline Acts. We do not seek to extend their powers.
	The Ministry of Defence Police already have authority vested under the Ministry of Defence Police Act 1987 to exercise police powers outside the defence estate at the request of a Home Department police officer provided that it is Xin the vicinity" of defence property. We believe that that power has proved too vague and too restrictive to meet the needs of the force under today's conditions. We seek therefore in subsection (2) of Clause 98 to repeal that power and to insert two new and more clearly defined powers as set out in subsection (4).
	First, there is an authority to exercise police powers anywhere when requested by another police officer, but only in respect of a significant and specific incident, investigation or operation. I have used the word Xsignificant", but I should not have done so. I refer only to a specific incident, investigation or operation. That proposal appears to have been accepted, at least to the extent that no amendments have been tabled on it at this stage of our proceedings.
	Secondly, there is an authority to exercise powers in an emergency, but only in respect of a person whom they suspect of having committed, being in the course of committing or being about to commit an offence, or to save life or prevent or minimise personal injury, and—this is important—where action is needed in a timescale which renders it impossible to secure the attendance of another police officer or a request to take action.
	The noble Lord, Lord Wallace of Saltaire, with the battle scars to remind him of the occasion, spoke of this as a rehash of a Bill that was passed only in part before the general election. I hope that these proposals will make him feel easier. Having taken the tenor of the debates held during the proceedings on the Armed Forces Bill, to which the noble Lord referred, we do not propose to resurrect the power proposed in that Bill, which sought to enable the MoD Police to enter into standing agreements with Home Department forces to police areas adjacent to defence property. We think that the powers now being sought will suffice to meet the needs of the force in all likely scenarios. Thus, that change has been introduced.
	We believe that the changes set out in the Bill represent a sensible but strictly limited clarification and extension of the powers of the MoD Police to enable them to do the job they have been set, to further co-operation with other police forces and to meet the expectations of the public. The public does have expectations and we must do our best to meet them. However, the powers are especially important at a time of heightened terrorist threat when defence property could very easily become a terrorist target. Lastly, the powers parallel closely those which we seek for the British Transport Police.
	In dealing with the amendments, perhaps I may say why we are not able to accept them. Together their effect would be to restrict to a narrow range of incidents the authority of MoD police officers to act outside defence property in an emergency; namely, terrorist incidents where there is danger to life or the risk of personal injury. That would mean that a Ministry of Defence police officer whose assistance in an emergency was sought by a member of the public outside defence property would still be unable to act as a police officer except where terrorism was involved.
	From that arises the question whether it is easy to put over in every case precisely whether the incident is one that involves terrorism. The phrase used in Amendment No. 160 is,
	Xoffence which he might reasonably assume to be terrorism".
	But what is it reasonable to assume is terrorism? What of the case of going equipped to commit criminal damage, or the use of a stolen car? Would it be reasonable for a Ministry of Defence police officer to assume that that constituted an act of terrorism? What of the possession of a stolen passport? Perhaps I may cite as an example an individual acting suspiciously and tampering with a vehicle. He may be attempting simply to steal it, which would not be an act of terrorism. Alternatively, he may be seeking to place a bomb under the car. Clearly that would be such an act.
	In that situation, would we really want the officer to hesitate while he considers whether he has the power to act? Even less, would we want that officer to turn away and allow the offence to take place simply because he decided that it was not a terrorist offence? I think that members of the public would be deeply shocked if they thought that Ministry of Defence police officers, when faced with an incident, had to look at it in such a particular light. That is why, with the greatest respect—I understand why the amendments have been put before the Committee—the Government feel that Amendments Nos. 160 to 163 are, not to put too high a word on it, absurd. They would not deal with the problem.
	We are attempting to deal with the problem. Whether this course provides the right answer, only time will tell. I do not believe that attitudes such as those I have expressed would have been acceptable before 11th September; I am quite convinced that they would not be afterwards.
	My second point is that under the amendments—even where terrorism was involved—an officer from the Ministry of Defence Police would be unable to act unless there was an immediate danger to life or of personal injury. So the fact that it might be terrorism would not be enough unless it was terrorism intended to cause death or injury to a person. Of course, most terrorist acts are intended to do that, but it is possible that the terrorists might seek to destroy empty property for their own purposes—to frighten, to scare. They are clever, intelligent people who make their own calculations.
	If these amendments were agreed to, they would prevent a Ministry of Defence Police officer intervening in a situation where a suspect, believed to be a member of an illegal organisation, was scouting. Again, there would be no immediate threat of violence, but time would be of the essence. Under the Terrorism Act 2000—noble Lords involved in that Bill during its passage through the House will remember it with affection—the Ministry of Defence Police are empowered to arrest members of illegal organisations. But where there was no immediate threat of violence, these amendments would prevent prompt action by the Ministry of Defence Police without a prior request to the local police. I hope that noble Lords are persuaded that agreeing to the amendments would lead to an unsatisfactory result.
	As to safeguards, we have given a great deal of thought to the Committee's concerns. The powers are limited strictly to genuine emergencies. The clause states that the officer concerned can exercise the police powers granted under it only when the purpose of his action would be frustrated or seriously prejudiced if he did not act before another police officer could be summoned or contacted. Given the speed of radio communications, that places a severe limitation on the powers of the Ministry of Defence Police.
	As regards the British Transport Police, Clause 100 will permit officers to act outside their normal railway jurisdiction on non-railway matters in restricted circumstances. It would appear from the contributions made by noble Lords on all sides of the Committee that Clause 100 is widely supported. It has been argued for a long time that the British Transport Police should have extended powers. In our view, the case is well made out and I do not need to trouble the Committee any longer with the arguments. They are very much the same as those I employed in regard to the Ministry of Defence Police. I hope that the noble Lord will withdraw his amendment.

The Earl of Onslow: The noble Lord listed the actions the police could not take without these powers. But surely it is right that if I see these crimes being committed, I, as a common citizen, have a citizen's power of arrest? To those of us who have what the Home Secretary calls an airy-fairy, liberal concern for liberty—we call it a deep concern for the proper constitutional government of this country—the noble Lord is saying that if a Ministry of Defence policeman sees the same thing, he cannot do anything because he has to pass by on the other side. I simply do not believe that to be the case.
	As for the Minister saying that our worries about the extension of police power are absurd, I believe that it is perfectly reasonable to say that the Government's tendency to ignore civil liberties—of which there have been many examples recently—is not necessarily absurd but plain wrong.

Lord Wallace of Saltaire: I accept that the cases of the British Transport Police and the Ministry of Defence Police are rather different. I am less and less persuaded of the case for these specialist police forces. There is an increasingly strong argument that they should be absorbed into the civilian police, but that is a much larger issue.
	I remind the Minister of the long history of the Ministry of Defence Police. When we debated the British Transport Police, the noble Earl, Lord Attlee, and I both raised the parallel with the Ministry of Defence Police. The Government Front Bench spokesman at the time said, XAh, but the MoD Police do not have much contact with the public"—after which we had to remind him about Greenham Common.
	My concern began with Menwith Hill and Fylingdales. Extending the powers of the Ministry of Defence Police is not simply to do with the current terrorism Bill. It raises large questions about civil liberties and the kind of demonstrations in which many of us took part in our youth. That is why we wish to circumscribe the extension of these powers as specifically as possible to matters concerned with reasonable suspicion of terrorism.

Lord Bach: I appreciate that the thinking behind many of the amendments is far from absurd. It is concerned with the very important issue of civil liberties, which my noble friend Lord Rooker has dealt with on many occasions. However, it is still my submission that in this instance we may be left with absurd situations if the amendments are agreed to. That is perhaps another way of putting the point.
	The noble Earl, Lord Onslow, referred to a citizen's power of arrest. Of course, the citizen's power of arrest exists, but no one would claim that it is the equivalent of a police officer's power of arrest. If these amendments were agreed to, a Ministry of Defence policeman would not be entitled to stop and search, let alone arrest. The powers of arrest of a citizen are extremely limited and arise mainly where there is certainty that a crime is being or has been committed. Reasonable suspicion is not always enough. A police constable can rely on reasonable suspicion and use a range of powers to prevent a crime occurring and to detain persons to confirm or eliminate criminality. There is a marked difference between the powers given by our laws to a citizen when he or she bravely makes an arrest and the powers given to a police officer when he or she stops and searches someone or makes an arrest.
	I should say to the noble Lord, Lord Wallace, that we do not accept for one moment that the Ministry of Defence Police do not have contact with members of the public. There is enormous contact between that police force and members of the public. Anyone would think that members of the MoD Police dealt only with people in uniform. That is not the case. They police housing estates in which crimes occur; they undergo the same basic training as other constables; and their primary role is to deal with civilians, dependants, contractors, trades people and visitors to sites. We do not concede for a moment that they have less experience of dealing with people than other police officers.

Lord Monson: As I understand it, at the moment, if a Ministry of Defence Police officer or a British Transport Police officer sees a man picking someone's pocket or driving a vehicle with a defective rear light outside a defence establishment or British Rail property respectively, he cannot do anything about it. The Minister is maintaining that this is an absurd situation and that it will continue to be the case if the amendments are accepted—even though picking pockets and driving with a defective rear light are absolutely nothing to do with terrorism, which is the purpose of the Bill.

Earl Attlee: The noble Lord, Lord Wallace of Saltaire, prayed in aid my name in support of the amendments. However, I support the Government's provisions. The difficulty with the Armed Forces Bill was that, effectively, the provisions were bounced upon us quite quickly over a quite short time-scale, and therefore the House rightly invited the Government to withdraw them. We have now had more time to think about them, post Armed Forces Bill, and I support the Government's provisions.

Lord Bach: I shall attempt to answer the question raised by the noble Lord, Lord Monson. The Bill will allow the Ministry of Defence Police and the British Transport Police to act on their own only in the circumstances referred to where there is no opportunity to make contact with the civil police. Where there is a possibility of doing that, and of avoiding the crime, that is their duty. They will be allowed to act on their own only if there is no chance of contacting the civil police—because the offence is immediate or because of the particular circumstances. Members of the public would think it peculiar if someone who was a trained police officer was not able to intervene in such circumstances in order to prevent a crime being committed.

Lord Monson: That is the case at present, is it not? As matters stand, MoD and BTP officers cannot intervene.

Lord Bach: The noble Lord is right. They cannot. They can make a citizen's arrest in certain circumstances, though not necessarily for the type of offence referred to. That is why we are trying to change the law, sensibly on this occasion.

Lord Faulkner of Worcester: Does my noble friend recall what happened in 1994, shortly before the Lord Mayor's Show? A police constable—admittedly from the civil force, but that is important, as I shall explain—routinely stopped a man who was having trouble with the gears of a van, and who took out a gun and shot him? The van was found to contain explosives. Had that officer been a member of the Ministry of Defence Police or the British Transport Police, he would have had no power to order the man to stop the van and explain what he was doing. These two clauses are important, because they will give such police officers the protection that the civil police would have in those circumstances.

The Earl of Onslow: Has the noble Lord had vast correspondence from the general public and seen leaders in the newspapers saying, XWe cannot allow this anomaly to go on. We must give the Ministry of Defence Police extra powers"? I simply do not believe that.
	In the case referred to by the noble Lord, Lord Faulkner, the policeman stopped the man purely by accident. It had nothing to do with suspecting that the man was a terrorist. It was because the wretched car would not work. No Ministry of Defence policeman would assume, even now, that because the car was not working he had to stop the man or that he might be shot or find explosives. The 1994 corollary does not wash.
	Those of us who are worried about the creeping creation of a national police force would be quite happy to have a general debate on the need for such a force and on its proper constitution. There may be a case for that. But the trouble is that it is being introduced under the guise of something else, by stealth, and without proper thinking behind it. That is the complaint. I am convincible of the need for a national police force. I am not convincible of the need to introduce it in dribs and drabs, without a proper plan.

Earl Attlee: If the British Transport Police or the Ministry of Defence Police intervene outside their current jurisdiction using the new powers, can the Minister confirm that Home Office police forces will have primacy over the handling of an incident?

Lord Bach: Yes, I can give that confirmation. I am grateful to my noble friend Lord Faulkner of Worcester for his example. I could give others, but it may not be necessary to do so. I appreciate and respect the concern expressed by the noble Earl, Lord Onslow, about civil liberties and the need not to change matters just for the sake of it. But I am afraid that, following the events of 11th September, we live in a different world. They woke us up to what terrorists were capable of. Perhaps we should have woken up sooner—I know that noble Lords on all sides of the Committee feel that we should have done so.
	The British public would not understand it if an MoD policeman saw some suspicious activity—which could not necessarily be connected with terrorism at the time but which later turned out to be a preliminary act in the course of committing a terrorist offence—and that officer was not able, because of the law, to intervene and possibly stop the event taking place. That is not an attack on civil liberties. That is protecting freedom, is it not?

Lord McNally: The Minister keeps returning to the mantra, XThings changed on 11th September". We all agree on that. But we understand that, tomorrow, the Home Secretary will publish a White Paper on policing which may involve new primary legislation on policing. Surely the noble Lord is not suggesting that in the new post-11th September world we should abandon the normal procedures of parliamentary scrutiny for powers that are sought by the executive. That is the point that Ministers seem unwilling to accept. Following the events of 11th September, there are matters requiring immediacy and urgency that both Houses are ready and willing to concede. But there are other matters which must receive proper scrutiny. I suspect that, tomorrow, the Home Office will announce matters covering the police which will certainly reflect on the events of 11th September, but which will also need the kind of close scrutiny that Parliament must protect and must reserve to itself.

Lord Bach: I do not think that, during the course of my brief foray into the Bill, I have said anything to imply that I do not believe that it is entirely appropriate that both Houses of Parliament should scrutinise the Bill with enormous care, as the Committee is doing at present. It is absolutely right and proper that it should do so. Parliament is a protector of our freedoms. But the Government are also entitled to give their views as to why we believe that certain actions and certain changes are necessary. As we have all woken up to a certain extent since September 11th, we can, with some justification, defend what we are doing on that basis. I hope that the noble Lord is not suggesting—I do not believe that he is—that this particular Minister, or any Minister in this place, is suggesting that proper scrutiny is not a necessity for a Bill of this kind.

Lord Dixon-Smith: We have had a good debate on this group of amendments. The Minister has rightly laid out the dilemma in the existing position as regards Ministry of Defence Police and the British Transport Police. I accept that there is a logical case for what the Government seek to do in the Bill. That, however, is not the argument.
	The argument is about whether it is appropriate to deal with matters of this nature, which are more relevant to normal police matters and normal criminal legislation, in a Bill that is being rushed through its parliamentary procedures as a specific consequence of the tragic and dreadful events of 11th September. That is the fundamental argument which will probably continue to divide us.
	As I have said, this is the fifth consecutive day of debate on the Bill. That is not unprecedented, but it is extremely unusual in the practices of this House. I speak as someone who has had to spend a great deal of time on the Bill, as have the Minister and his colleagues. I should be surprised if anyone who has been through that mill is prepared to say, hand on heart, that we have been able to give complete and adequate consideration to the Bill's provisions and to their consequences. I do not feel that we have been able to do justice to the seriousness of the matters before us because of the procedures that we are indulging in. I have said sufficient. This has been a recurring theme. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 161 not moved.]
	On Question, Whether Clause 98 shall stand part of the Bill?

Lord Wallace of Saltaire: It is undoubtedly convenient for the Government to bring back as part of this Bill what would otherwise have been a separate short Bill on the future of the Ministry of Defence Police. However, we are not here to assist the convenience of the Government.
	Paragraph 68 of the report of the Joint Committee on Human Rights, published on 14th November, notes that the powers that will be conferred on the Ministry of Defence Police engage rights under eight different articles of the European Convention on Human Rights. The report points out:
	XThe ordinary constabularies are subject to elaborate mechanisms designed to provide safeguards for those rights, including subjection to various Codes of Practice, recording requirements, complaints procedures and training programmes. . . . It is not clear how those safeguards will be applied to, and operated by, the Ministry of Defence Police, the British Transport Police, and the Atomic Energy Authority special constables".
	The report then says, in some of its strongest language:
	XUntil the extent to which the safeguards surrounding the procedures of Home Office police forces will apply to the Ministry of Defence Police, the British Transport Police, and the Atomic Energy Authority special constables in their new functions is clarified, we are unable to be confident that the Bill provides adequate safeguards against abuse of or interference in human rights. We draw these matters to the attention of each House".
	That is as strong an invitation as we could ask for us to give very careful consideration to these clauses.
	As I have said on a previous amendment, there is a long history of discussion on the Ministry of Defence Police. There have been a number of worrying cases of the use and abuse of powers against people involved in demonstrations against American intelligence bases—particularly those in Yorkshire and elsewhere—or against nuclear weapons. The particular issue of American intelligence bases gives rise to another set of large questions about extraterritoriality and about the Ministry of Defence Police in effect operating under the authority of another government, which creates particular concerns about the protection of human rights and civil liberties.
	The particular issues on which those sections of the Armed Forces Bill failed to meet with the approval of this House were the authority of the police committee and whether the force should be subject to the same sort of independent police committee as civilian forces have. We also retain concerns about the quality of the complaints procedures and training programmes. I have heard unofficially from a number of members of the Association of Chief Police Officers that many of them have some reservations about the quality of the training programmes in the Ministry of Defence Police.
	I give the Government notice that we are minded on these Benches to re-introduce on Report the amendments that led to the failure of those clauses in the Armed Forces Bill just before the election. Those amendments dealt with the establishment of an autonomous and independent police committee for the MoD Police.
	When I saw the list of members of the police committee of the MoD Police I felt with a sinking heart that I knew far too many of them. They are almost all officials. They operate with a secretary from the Ministry of Defence. They are in no sense independent. We are entitled to ask under any conditions, even when we are concerned with the prevention of terrorism, that those safeguards should be provided. We expect to have some assurance from the Government by Thursday at the latest that if they continue to find it convenient to include Clauses 98 and 99 in this Bill, they will yield to the House on the issues raised in the report, which we also raised during the debates on the Armed Forces Bill.

Viscount Bledisloe: On the previous amendment, my feelings and sympathy were entirely with the Minister, because, pace the noble Earl, Lord Onslow, the fact that clauses produce an undesirable result is no possible argument in favour of amending them to produce yet more absurd results.
	However, on the Question whether the clause shall stand part, I am much more in sympathy with what the noble Lord, Lord Wallace, has said. The powers conferred in the clause raise many problems that cannot properly be addressed within the time frame of the Bill. The Government have two choices. First, they could abandon the clauses and bring them back at a later stage in a police Bill. However, if, as I gravely suspect, they are not minded to do that, surely they have given a cogent reason why this part of the Act—indeed, the whole Act—needs a sunset clause. After all, only a quarter of an hour ago, the noble Lord, Lord Bach, candidly said that only time would show whether the Government had got the right answer. Surely that is an overwhelming reason for the whole topic to be revisited in a short time in a calmer and more leisurely manner.

The Earl of Onslow: I was very struck by what the noble Lord, Lord Wallace, said—this had slipped my memory—about the fact that there is to be a new report on the police. The current worry about police competence and behaviour is wider than I have been aware of during my life. Home Office leaks suggest that the Home Secretary is thinking of taking powers to remove chief constables if they do not perform. That will need legislation. If that is the case, I wonder whether it would not be better to drop these clauses and put them into a police Bill. If any of the leaks coming out of the Home Office are right, such a Bill will be necessary. Then we could look at control, discipline, civilian non-government influence and other issues—and even, possibly, whether there is a need for specialist Ministry of Defence and transport police forces.
	The proposals may be the right answer, but surely it is miles more sensible to act with thought and consideration. I do not believe that a three-month or six-month lack of extended powers for the Ministry of Defence Police will make a smidgen of difference to terrorist activities. Perhaps I am a little cynical, but I cannot see any way in which the Bill would have had any effect on the behaviour of the terrorists before September 11th. There was a general failure of intelligence. Had the intelligence been as good as it was in the novel The Day of the Jackal we would have got the terrorists and stopped what happened. There is an element of over-reaction now, some of which I go along with partially. Going back to what the noble Lord, Lord Dixon-Smith, said, please let us think before we do anything. If we do, we might have a chance of getting it right. If we do not think, we will not get it right.

Lord Burnham: Your Lordships are always being told that we should not make Second Reading speeches in Committee. I fear that on this occasion, a number of Members of the Committee, including the Minister, are making speeches that relate not to this Bill but to a previous one—the Armed Forces Bill—which we discussed before the general election.
	The noble Lord, Lord Bach, knows only too well that when we discussed that Bill we said that it was not necessary to produce it in quite such a hurry and that it need not be in force before December. However, the Government decided that they wanted to get on with it in May. As a result, in spite of what was said by my honourable friends in another place, it was decided to eliminate Part 4, comprising Clauses 31 to 34, from the Bill.
	I listened to what Members of the Committee and the Minister had to say on the previous amendment. The Minister is singing the old song that he and his noble friend sang when we said that we were working in too much of a hurry and could not resolve matters. That was particularly true on the issues raised in the previous amendment about the powers of the Ministry of Defence Police and how much authority they have outside their immediate areas and various other matters.
	The Minister also said that the Government did not intend to revive Part 4 of the Armed Forces Bill. However, it seems appropriate that because there is so much argument about the Ministry of Defence Police that such a Bill should be revived. We should have the chance to resurrect that part of the Armed Forces Bill, have full-blooded debates and procedures on it and eliminate those parts of this Bill which would be inappropriate if such a debate were to take place.

Lord Bach: I have already explained to the Committee the purpose behind Clause 98. It permits the Ministry of Defence Police to act outside their normal jurisdiction in certain defined, limited circumstances. The Committee knows well—some Members more than others—the history of the Bill discussed before the general election and will know of the existing authority that the Ministry of Defence Police have under the 1987 Act to exercise police powers outside the defence estate at the request of a Home Department police officer provided it is in the vicinity of the defence property. I do not know whether that right is being objected to.
	I take the point made by the noble Lord, Lord Wallace, that it is an issue that he has raised many times over the years. We believe that for the situation in which we find ourselves, which is likely to last, it is important to make these changes now. We reject the suggestion of the noble Earl, Lord Onslow, that all this is completely irrelevant and has nothing to do with what happened before or after 11th September. We do not believe that. We think that it is time that we got it together to defend ourselves in the best possible way against terrorists and others because that is what the public expects of us.
	It is in that spirit that we bring the clause to the Committee. We believe that the limited nature of what we are suggesting and the absurdities that the proposed changes would represent, as discussed at length on the previous group of amendments, show that it is a necessary clause to the Bill. It is a sensible clarification and extension of the powers of the MoD Police to enable them to do the job that they have been set and to allow further co-operation between police forces. I repeat, and make no apology for doing so, that the clause meets the expectations of the public.
	These powers are especially important because of the heightened terrorist threat when defence property—again I am repeating myself—could so easily be a terrorist target. It is right to scrutinise and consider these clauses carefully, which is what is happening. The easy historical criticisms of the Ministry of Defence Police seem to be completely and obviously misplaced. The MoD Police are subject to the Police Complaints Authority in respect of complaints by virtue of Section 96 of the Police and Criminal Evidence Act. That has been the case for a long time.
	We are considering the issue of police committee membership. Members of the Committee will know that we have added three independent members to the committee and we are looking to see whether more needs to be done. It has been suggested that meetings of the police committee should be held in public. The chief constable has said that he would welcome that proposal in the light of his experience in the West Yorkshire Police. We are not determined that the structures of the Ministry of Defence Police should necessarily remain the same. Things are moving along.
	I return to the argument that for the circumstances in which we find ourselves Clause 98 is a sensible and limited response so that the Ministry of Defence Police can carry out the functions that they are meant to do. I hope that Clause 98 will stand part.

Lord Wallace of Saltaire: The Minister has failed to persuade us that Clauses 98 and 99 are a necessary response to terrorism. I welcome his suggestion that things are moving, but I remind him that all is still not well with the Ministry of Defence Police. A number of inquires are under way and there are unresolved complaints that leave big questions as to whether or not they have the same standards as a civilian force.
	Of course, there are problems with the protection of defence property, which is the fundamental role of the Ministry of Defence Police. We should also remember that defence property can be sensitive in a host of ways if we come back to the question of the breaking of the ABM treaty and the use of Fylingdales in support of a missile defence system that is owned and operated on behalf of the United States. We shall have a sensitive domestic debate in which the Ministry of Defence Police will again come into contact with civilians who are demonstrating, which has nothing to do with terrorism but which may have a great deal to do with sensitive issues of domestic politics and foreign policy.
	I am very sympathetic to the points made by the noble Earl, Lord Onslow, that a police Bill would be a more appropriate place to discuss the relationship of these specialised forces. I was informed yesterday that there are nine such forces, although my informant could not name them all. He mentioned the Tilbury Docks Police, but the three that we have been discussing are the most important. In such a Bill, the role of these specialised forces could be discussed comparatively. The way in which they operate and their standards with regard to the protection of civil liberties and complaints procedures could be compared with the Home Department police forces and thoroughly debated.
	As regards defence property, we are thoroughly in favour of the MoD Police being given all the necessary powers to protect it. As regards the relationship with people off a base or at some distance from a base, we then become involved with much more sensitive issues. We shall return to the matter on Thursday. We may well wish to press the point and remove the relevant clauses from the Bill. However, there is room for further discussion between now and then as regards what the Government might wish to concede. I refer to further movement in terms of responding to the extremely critical remarks in the report of the Joint Committee on Human Rights. However, for the moment, I withdraw my opposition to the clause.

Clause 98 agreed to.
	Clause 99 agreed to.
	Clause 100 [Jurisdiction of transport police]
	[Amendments Nos. 162 and 163 not moved.]
	Clause 100 agreed to.
	Clause 101 agreed to.
	[Amendment No. 163ZA not moved.]
	Schedule 7 agreed to.
	Clause 102 [Codes and agreements about the retention of communications data]:

The Earl of Northesk: moved Amendment No. 163A:
	Page 62, line 7, leave out from XState" to Xa" and insert X, business representatives and the Information Commissioner shall jointly issue"

The Earl of Northesk: In moving Amendment No. 163A, I wish also to touch upon the other amendments in the group, Amendments Nos. 164, 164A,B,C and D, 165A, 174A and 176C. That said, I do not propose to weary the Committee by speaking to each and every amendment in turn. Some general observations should suffice to explain their thrust.
	They pursue two discrete, albeit intertwined, strands of thought: first, that a broad range of business interests should be involved in the drafting of the code of practice and, secondly, that the Information Commissioner should also be involved. With respect to the first of those matters, I acknowledge and compliment the Government on the way in which representatives of communications service providers have been involved thus far in the development of the proposals on the face of the Bill. As the Minister will be aware, they still have outstanding concerns, not least that the current drafting lacks legal certainty in a number of key areas. None the less, their involvement to date has been helpful. It chimes with the Government's assurance that they would work with business to produce the code of practice.
	That said, the Bill is potentially very wide in application. It extends, so far as I can tell, to any telecoms service provider, even those of private networks. For example, as I read the Bill, it is conceivable that the PDVN will fall within its scope and could be obliged to retain all its communications data. Perhaps the Minister can address that point in due course. It therefore makes sense that the Government should be subject to a statutory requirement to consult with a broad range of business interests in devising the code of practice, if only because—this is a particular concern of the CBI—a limitation of the scope of consultation could penalise existing business practices.
	Moreover, pro-active involvement in the drafting of the code from a broad base should lessen the likelihood of non-compliance and thereby reduce the need for the Secretary of State to issue directions. Address of these concerns is embodied in a package of amendments comprising Amendments Nos. 163A, 164A, 165A and 173A, although, inevitably, there is some cross-referencing within these as to the potential role of the Information Commissioner.
	Turning to that matter, I express considerable surprise that the Government have not included the Information Commissioner as an appropriate consultee. As the Committee will be aware, she has statutory responsibility for promoting and enforcing the Data Protection Act 1998 which, in turn, sets legally enforceable standards in relation to the processing of personal data. With that remit, it is incredible that the Government feel that she has no role to play in the drafting of the code. As she herself has observed in her memorandum on the Bill,
	XThe [Bill] provides for consultation with communications providers at the point of production or revision of a code. There are a number of other interested parties who should be involved in any consultation process. Given the Commissioner's role in enforcing legislation affecting the retention of data it is essential that she be included formally in the consultation process".
	We on these Benches agree with that view.
	In fact, there is an even more significant reason as to why the involvement of the Information Commissioner is so essential. Those Members of the Committee who have followed the development of data legislation will be only too well aware of what a tangled web it already is. The tensions that exist between the Data Protection and Regulation of Investigatory Powers Acts are legion and a dangerous minefield for the unwary. One need only contemplate the huge difficulties that the Information Commissioner has had in preparing a code of practice on the legal business practice regulations to get a flavour of how inconsistent the law is here. It would, in my view, be the height of lunacy to enact the provisions on the face of the Bill without ensuring that mechanisms are in place to ensure that the code of practice has at least some consistency with existing legislation. Such a task is within the Information Commissioner's remit and so it is essential that she be formally consulted about the code. At the very least that would undoubtedly improve its legal clarity and ensure that the interests of users are more formally taken into account. I beg to move.

Lord Goodhart: Amendment No. 164, in the names of my noble friends and myself, is probably in the wrong place in the clause. Nevertheless, we strongly support the principle that the Information Commissioner should be actively involved in consultation and in the preparation of the code and we believe that that should be on the face of the Bill.

Lord Rooker: It is probably inadvisable to repeat what I have done in previous debates today, namely, to address every amendment in the group. As the noble Earl said, the thrust of the amendments is encapsulated in two issues: that of the business interests and that of the Information Commissioner. He asked specifically whether the measure included any telecoms provider. That is the case. It includes private networks. Our main objective is to include the public networks such as BT, Orange and Vodaphone. However, private networks are also included. I refer to the intranets of private companies, universities and, indeed, the PDVN, which is a private network. However, as I say, our central objective is to include the public networks.
	It is important to discuss the matter with all providers. That practice must be followed with regard to the code of practice. We have every expectation of reaching a voluntary agreement on the matter. Co-operation since September 11th has been extremely good. The key clause is, indeed, Clause 102 which sets out a voluntary code of practice which may be revised.
	Retaining the data is one thing but what is done with it will fully conform with human rights legislation and the Regulation of Investigatory Powers Act. I hope that there is no scintilla of doubt about that. We fully intend to conform with all the legal requirements. As I and Ministers in another place have already said, the data that are retained do not include messages or conversations. That bears repeating. We do not seek to monitor the content of telephone conversations or e-mails.
	The information that we shall require providers to retain is information that they hold now for billing purposes. We have all seen telephone bills. Some are more detailed than others. But it is known that if one has a mobile phone—indeed, these days it applies also to landline telephones—the bill supplies the date of the call, the phone number dialled, the duration of the call and the date on which it took place. The billing address is also a useful piece of information. All those data are important. The content of the call is not retained and we do not seek that. As I said, our intention is to operate a voluntary system. From the conversations and discussions that we have had so far, we have every reason to believe that we shall arrive at a voluntary agreement.
	I could go through all the amendments at length but I do not propose to do so, save for one—Amendment No. 164D. I ask Members opposite not to fall over because I am going to accept it. The parliamentary draftsman produced a better form of wording, but I asked what difference it would make. The answer was: none. It is much easier to make it abundantly clear—I hope that this meets the noble Lord's point about the Information Commissioner—that we have no intention of cutting out the Information Commissioner in any way, shape or form. He has a statutory function to perform and will be consulted fully beforehand.
	What we do not consider to be a good idea is a joint code issued by government, industry and the Information Commissioner. That would be wholly impractical. The buck stops with the Home Secretary. However, the fact is that we shall accept the amendment without any knock-ons in relation to technical drafting. In any event, I cannot see anything wrong with the wording. Amendment No. 164D is acceptable to the Government and I hope that in due course the noble Lord will move it. I sincerely hope that he will because, as I said earlier today, the timing for reprinting the Bill for Report stage is crucial. Therefore, we shall accept that amendment.
	Having said that, I am quite happy to deal in detail with the other amendments in this group. I return to my initial remarks concerning the legal aspects of what we do with the data. Perhaps I may mention one matter. At Second Reading, I believe, a noble Lord said that there would be information overload. There will be no such thing. We do not seek block transfers of information. We are asking the providers to keep the information that they use for billing purposes for a period which will be set out in the code. That period has still to be agreed. Requests for such information would be made only when the Government needed access to it. It will not be a wholesale transfer, and there is no question of information overload in that respect. I cannot go over the details of the code because they have still to be agreed. But we require that provision and shall continue with our discussions. We expect to be able to secure agreement to a successful voluntary code.

Lord Lucas: I want to pick up on one point made by the noble Lord. Most communications data have nothing whatever to do with billing. Almost all the communications data concerned with Internet transactions have nothing to do with billing because billing is done simply on, as it were, a leasing-of-a-facility basis. Therefore, I hope that the Minister does not believe that he needs that data because the billing data are sufficient. He is talking about a vast amount of data. Several new computers a day will be required for the length of time that the noble Lord wants to hold such data if he is to access the entire amount. It is very important that the Government know what they want and restrict their demands to what they want and what they can use rather than to the vast amounts of data which are there.

Lord Rooker: I accept that data retention in relation to e-mail is wholly different from that for telephones. The information that I have in front of me appears in two columns, and my remarks were related exclusively to telephone data. For obvious reasons, e-mail is more difficult in that respect. Nevertheless, the Regulation of Investigatory Powers Act will guide how information is sought. However, we are not seeking to over-burden industry. As I said, the idea is that the code of practice will be agreed by industry.

Lord Phillips of Sudbury: While the Minister is on a roll and has kindly conceded the need to consult the Information Commissioner, I wonder whether he has overlooked Amendment No. 164B. That amendment calls for consultation with all interested parties, including Internet providers and, now, the Information Commissioner. Quite rightly the Minister has referred to the interaction of this piece of legislation with the Regulation of Investigatory Powers Act. They will be infinitely inter-related, and that will cause some of us further excitement. However, Section 71 of the RIP Act expressly provides that, before issuing a code of practice, the Secretary of State shall,
	Xprepare and publish a draft of that code; and"—
	here is my point—
	Xconsider any representations made to him about the draft".
	I believe that, in its own way, Amendment No. 164B was designed to cover the same ground; namely, that the consultation should be wide enough to allow anyone with an interest to respond to the draft code. I should have thought that that would be helpful to the Secretary of State. Therefore, I wonder whether the Minister might review that point.

Lord Rooker: I should not want to put that on the face of the Bill. We shall publish a draft code and shall consider any and every comment and representation on it from wherever it comes. The requirement to consult all interested parties, as opposed to industry and the Information Commissioner, does not prevent anyone—individuals, citizens or whoever—offering advice and comment on the draft code.
	However, we should bear in mind what the noble Lord said a few moments ago about the vast amount of information and the millions of people involved. That would make a nonsense of the procedure because someone would run to my learned friends and say, XYou have missed 2 million people in the North of England because all interested parties are on the Net or have mobile phones". We are concerned with the providers and with the mechanics of the issue. We shall do our best to ensure that all those with a relevant interest—that does not exclude anyone else making a comment on the draft code—will be considered.

Lord Phillips of Sudbury: That is a very fair point. However, I simply wondered whether the Minister agreed that the duty to consult should not be on the face of the Bill. But, as in the RIP Act, perhaps a provision could be included stating that the Secretary of State will consider any representations made to him. It would be a passive duty.

Lord Rooker: I am saying that now. Let us forget the code; I am saying that on the Floor of this Chamber. We shall consider all representations. No one will be excluded from making a representation. Those representations will be considered by Ministers in due course before the final code is published. That is my commitment.

The Earl of Northesk: I am not sure whether it is the result of the eloquence of my oratory or perhaps the support of the Liberal Democrat Benches, but I am extremely grateful for the Minister's acceptance of Amendment No. 164D. In the circumstances, I should not push too much more—certainly not within this group. I shall therefore resist the temptation of pursuing the matter of business involvement at this stage.
	I heard what the Minister said about public versus private networks. In truth, it raised my hackles somewhat but no doubt we shall return to that matter with later amendments. None the less, I can accept that the Government's focus is on public networks. No doubt we shall return later to a number of other issues raised by the Minister. In the meantime, I am grateful to the noble Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 164 to 164C not moved.]

The Earl of Northesk: moved Amendment No. 164D:
	Page 62, line 17, at end insert—
	X( ) Before issuing or revising a code under this section the Secretary of State shall consult with the Information Commissioner."
	On Question, amendment agreed to.

The Earl of Northesk: moved Amendment No. 165:
	Page 62, line 18, leave out subsection (4) and insert—
	X( ) Where the Secretary of State issues or revises a code of practice or enters into an agreement under this section, he shall publish the code, the revised code, or, as the case may be, the terms of such agreement."

The Earl of Northesk: It may be for the convenience of the Committee if I address also Amendments Nos. 165A, 172, 172A and 176B. No doubt Members on the Liberal Democrat Benches will speak to Amendments Nos. 166 and 167.
	The powers granted by Part 11 are exceptionally broad and, like it or not, impact significantly on the individual's right to privacy. Whether they should will form the substance of debate on the next group of amendments. The purpose of Amendment No. 165 is to require the Secretary of State to publish the code of practice, revised code or arrangements—to make such documents available to a wider audience. In that way, all of us will be better placed to know the precise terms under which our data are being retained—an important consideration not only in the protection of individual liberties but in guaranteeing equitable treatment among communications providers.
	The Minister may suggest that because the codes and agreements could contain commercially sensitive information, the amendment would be inappropriate. It is concerned with ensuring proportionality and equity of treatment as much for the industry as for the individual. My understanding is that the industry is not unsympathetic to the approach advanced in Amendment No. 165—the more so, if it acts as a brake on any extravagance that might be contemplated for inclusion in any codes or agreements.
	Amendment No. 172 is no less important. It seeks to ensure that every code of practice issued by the Secretary of State is laid before Parliament. The principle of data retention is at the heart of the right to privacy. That being so, it is appropriate that codes should be subject to parliamentary scrutiny—a point well made by Justice in its submission to the Delegated Powers and Regulatory Reform Committee:
	XPart 11 would allow for the creation of a large database of information, which could significantly intrude on privacy rights. In light of this it is particularly important that the code and any directions under Clause 102 should be subject to parliamentary scrutiny".
	That thread is followed through in Amendment No. 172A. More significantly, it takes account of paragraph 23 of the committee's report on the Bill. We hope that the Government will heed that sound advice.
	Amendment No. 176B seeks to prove the extent to which Scottish Ministers will be consulted about Part 11 powers and how appropriate such consultation will be. I have it in mind that RIPA is a reserved matter and presume that data retention powers would be too. Bearing in mind that our debates have demonstrated the great potential threat to individual rights posed by the proposals, it is essential that the devolved administration should be kept within the loop of progress and development.
	We see the sense of Amendments Nos. 166 and 167 and support them. I trust that my remarks offer adequate comfort to Members of the Committee on the Liberal Democrat Benches. I beg to move.

Lord Phillips of Sudbury: We wholly concur with all that has been said about the amendments—several of which have mixed parentage across Opposition Benches. I emphasise the importance of ensuring that the code should be subject to negative approval by the House of Lords and the other place, given the importance that the Government and the industry attach to the code.
	Amendment No. 165 requires publication by the Secretary of State when issuing or revising a code, which extends to any agreement made under the section. That might sound contentious but we believe that complete transparency in the functioning of that important part of the measure will benefit the Government, industry and the world beyond. It will sustain public confidence in a level playing field and in that individuals and particular firms are not being picked off by the Home Office for one reason or another.

Lord Rooker: The Home Office is not going to pick off anyone. I know there is a general view that the Home Office is oppressive. That is not true—it is a very liberal establishment.
	The amendments require the Secretary of State to publish any code of practice, revision to a code or agreement; and to lay before both Houses a code of practice or revised code. We cannot accept the amendments as tabled because we could not publish the full agreements, as they are likely to contain detailed, commercially sensitive and confidential information about individual service providers. However, we expect the code of practice to be more general in nature than the full agreements. I am happy to give the Committee an undertaking that we will publish a code of practice or revised code where it does not contain such sensitive information.
	I remind the Committee that the code of practice and agreements under the code are entirely voluntary. They will not be imposed by the Government on communications providers. Similarly, I shall be happy to place in the Libraries of both Houses summaries of any agreements or directions that do not contain sensitive commercial information, which will ensure that Parliament is informed as to which communications providers there are agreements with, what data they are retaining and for how long. That information could also be published on the Home Office website.
	As to the human rights implications of Amendment No. 172A, the code of practice and agreement will be drafted in such a way as to be fully compliant with the Human Rights Act 1998. We will consult the Information Commissioner to help ensure that is achieved.
	Access to communications data will be under provisions already contained in the Regulation of Investigatory Powers Act 2000. This measure is about retaining data, not about access to them. The 2000 Act requires consideration of the necessity and proportionality of specific notices or authorisations used to access such data. The legislation is structured to ensure full compliance with the European Convention on Human Rights and the 1998 Act. I hope that the Committee agrees that those undertakings will achieve the thoroughly valid intention behind the amendments. We can meet the spirit of the amendments in the way that I have described, so I hope that noble Lords will not seek to press them.

Lord Lucas: The code of practice will apply to something like 100,000 networks throughout the United Kingdom. It will apply to me because I run a little network of three or four computers. The code had jolly well better be a public document. It would be a bit daffy if the Government tried to keep secret something with a circulation that wide. All sorts of people will have to know about the code. The Government should determine that the code will be made public and leave out anything confidential. We shall all need to know about the code, understand what might be required of us and potentially live within it. The notion that the code might under certain circumstances be kept secret is mildly ridiculous.
	I understand the Minister's comments about the agreements having sensitive elements. I hope that he agrees that under the Freedom of Information Act 2000, it will be possible to obtain the parts of any agreement that are not confidential. I hope that such publication will be a matter of course.

Lord Rooker: I did make the commitment that it would be public, except for sensitive commercial parts. During the course of my remarks I did say the code will be published.
	I did not address Amendment No. 176B, relating to Scotland. These provisions are a reserved matter. Scottish Ministers would not expect to be formally consulted before the Secretary of State made directions against service providers in Scotland. There is nothing new about that. We have consulted with the Scottish Executive and have confirmed that data retention is a reserved matter and it does not expect to be formally consulted.

The Earl of Northesk: Once again I express gratitude for support from the Liberal Democrat Benches. I should say that the operators' group would be happy for codes of practice to be openly published—I make that point in passing. But I am grateful for the Minister's undertakings, albeit hedged with provisos on commercially sensitive information. That seems eminently sensible.
	I remain slightly nervous on the human rights issue. Parliament does have a role to play. It may help if I read part of the relevant passage from the Delegated Powers and Regulatory Reform Committee. In commenting upon this issue, they endorsed the views of the Human Rights Committee and went on to say:
	XAnd we invite the House to consider the most appropriate way in which this principle should be given effect. A possible method would be the draft of any code under Clause 102, to be submitted to the Joint Committee on Human Rights for its scrutiny".
	Would the noble Lord consider that a sensible way forward?

Lord Rooker: That is not a matter for the Government. That is a matter for the committee.

The Earl of Northesk: I hear what the noble Lord says. No doubt we shall have to return to the matter on Report.
	The Minister says agreements will necessarily be commercially sensitive. There is no reason why they should be. They merely spell out the types of traffic data and the length of time that data should be retained.
	I also hear what the Minister says about the devolved administration in Scotland. That satisfactorily deals with that point.
	I have no doubt we shall return to a number of these issues on Report but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 165A to 167 not moved.]

The Earl of Northesk: moved Amendment No. 167A:
	Page 62, line 22, leave out subsection (5) and insert—
	X( ) A code of practice, issued and revised by the Secretary of State and business, may contain such provisions as appear necessary for the purpose of safeguarding national security.
	( ) Provisions in the code of practice will be proportionate to what is required for the safeguarding of national security."

The Earl of Northesk: In moving this amendment, I shall speak also to Amendments Nos. 167B, 168, 169, 170, 171 and 174. This is the issue that has consumed the attention of the committee at almost every turn; namely, its scope.
	As the Minister conceded at Second Reading:
	XCommunications data has been central to the investigation into the terrorist attacks of 11th September. This data has been available because of the excellent co-operation shown by communications service providers.".—[Official Report, 27/11/01; col.152.]
	If investigations have proceeded and are proceeding so successfully under the existing law, is it necessary to seek the proposed extension of powers? There is a case for limiting data retention to the purpose of safeguarding national security or countering terrorism, as is proposed in the amendment. At Second Reading I referred your Lordships' House to the Home Secretary's Tribune article of 26th October in which he indicated that the voluntary regime would apply:
	Xstrictly in the case of a criminal investigation against suspected terrorists".
	But as the noble Lord, Lord McIntosh of Haringey, stated on Wednesday of last week:
	XWhen the anti-terrorist squad, for example, or any other bodies look for terrorism, they look for activities that one can discover but which may not themselves be terrorist activities. Those activities involve other criminal activities that could lead one to terrorists".—[Official Report, 28/11/01; col.401.]
	Quite so, but that is precisely what is objectionable. It is based on a presumption that all communications data might be useful in law enforcement, but not necessarily to prevent terrorism. The Joint Committee on Human Rights made the point eloquently:
	XThere is no express limit to the scope of the powers. They could be used to secure highly sensitive data for the purpose of investigating very minor offences or even for monitoring people's communications without any grounds for suspecting them of any offence or of threatening national security".
	This goes to the heart of the reasoning that underpins these amendments.
	Have the Government considered the practical difficulties of the measure? In order to counter the terrorist threat law enforcement needs focused intelligence. But the retention of data in case it may have relevance to a terrorist investigation, effectively necessitates the retention of all communications data. In respect of a single Internet service provider, this could be in excess of 500 terabytes a day—something like a single DVD for each second of traffic. Will information relevant to an inquiry be extracted quickly from such vast accumulations of data?
	Management of compliance with such a requirement will impact detrimentally upon the ability of communication service providers to conduct their businesses efficiently and effectively.
	The Data Protection Act gives data subjects rights of access to information about them as individuals. Do the Government suppose that this important protection will be manageable either for individuals or communications service providers when all data is retained?
	I turn to the issue of proportionality. The Minister suggested at Second Reading and repeated again today that all powers used will be fully in line with the European Convention on Human Rights and the Regulation of Investigatory Powers Act. There will be no generalised expeditions; they will all be related to specific inquiries and will conform to the terms of the legislation. I do not doubt the sincerity of those statements, but unfortunately they are not to be found on the face of the Bill.
	As I observed at Second Reading, the Information Commissioner, the Joint Committee on Human Rights and the Delegated Powers Scrutiny Committee all expressed doubts on this. I quote from the Information Commissioner's memorandum on the Bill:
	XIt raises a number of concerns about its compatibility with convention rights. The starting point must be that the proposed legislation will involve an interference with the Article 8 rights of individuals".
	I shall take this opportunity to make more detailed comments about the amendments. Amendments Nos. 167A and 167B are alternative approaches designed to achieve the same objective: introduction of a clear proportionality test and alignment of the Bill with similar principles already enshrined in RIP. This is necessary to ensure legal clarity.
	Amendments Nos. 168 and 169 speak for themselves. I make the point that the use of the phrase Xcountering terrorism" is not without precedent. It was used at Section 3(3)(a) of the Interception of Communications Act 1985.
	I turn to Amendment No. 171. Its purpose to tie the measures on the face of the Bill back to RIP. I am sure that the Minister is well aware of the obvious point that there is provision in Section 25(3)(b) of the 2000 Act for restricting by order the purposes for which data can be obtained by communications service providers in relation to national security. Clear legislative provision is required in the Bill to the effect that retained data cannot be obtained by law enforcement or intelligence services for any other purpose than national security. That is the amendment's aim.
	There is more that I could say but I conclude with a comment—and a question—from the Constitution Committee. I hope that the Minister will respond to it in due course, particularly, as I understand it, in the absence of any formal response as yet to the point. It stated:
	XThese provisions raise complex and often controversial issues. It seems questionable to us that they should be attached to a Bill on terrorism and security. Is their inclusion compatible with the proper exercise of the functions of Parliament and the proper operation of the principle of parliamentary sovereignty?".
	I beg to move.

Lord Murton of Lindisfarne: If this amendment, or alternative Amendment No. 167B, is agreed to, I shall be unable to call Amendments Nos. 168 to 170, owing to pre-emption.

Lord Phillips of Sudbury: I shall speak to those amendments appearing in my name; that is, Amendments Nos. 168, 170, 171 and 174. Again, I wholly identify myself with the comments of the noble Earl, Lord Northesk.
	Enough was said at Second Reading for the Minister and the Government to be aware of the widespread concern about this part of the Bill. The effects of the warehousing arrangements that these provisions will allow will create a source of potential information for the state which, frankly, has been contemplated only in the novels of George Orwell. We, like the Conservative Front Bench, feel as strongly as we can that the Bill has been introduced for entirely legitimate reasons; namely, national security in the face of an emergency threat. However, we do not and will not accept that it is legitimate to go beyond that and Xpiggyback" on that legitimate purpose the complete range of criminal offences, at whatever level.
	I remind the Committee of a report by the National Criminal Intelligence Service, which was leaked last year and is now available in full on the Internet. The report was publicised in the Observer. The memorandum proposes the creation of a Xnational traffic data warehouse" on grounds that are found in this and the succeeding clause. The unease that that creates on these Benches is added to because the memorandum is also the fruit of MI5, MI6, GCHQ, ACPO and Customs and Excise. One need not dwell in the lands of paranoia to believe that a fundamental issue of basic and traditional liberty is involved, and that that makes this group of amendments not only necessary but essential.
	On Amendment No. 171, unless it or something like it is agreed to, the practicality of retaining this vast amount of communications data, with regard to the implementation of the RIP Act, will be extremely unsatisfactory; indeed, that Act will not be workable. Under Section 22 of that Act, it is possible for a relevant public authority to collect data if it is authorised by what is called a Xdesignated person". Subsection (4) allows a designated person to involve,
	Xa postal or telecommunications operator",
	but the Bill refers to Xcommunications providers". It can require such people to collect communications data and to hand them over to the relevant authority. Unless we agree to the amendment or something like it, it will surely be possible for the authorisation and notice procedures in Section 22 to be used not only in relation to communications data involving national emergencies and national security but also in relation to any communications data that are held by the particular communications provider.
	I hope that I have not lost the Committee—I have only just not lost myself! My point is serious and I hope that the Government will respond to it.

Viscount Goschen: The noble Lord, Lord Bassam, will tell the noble Lord, Lord Rooker, if he has not already done so, about how fierce the battles were in this House concerning the Regulation of Investigatory Powers Act. Deeply held opinions were voiced by noble Lords and the legislation was substantially rewritten as a result.
	The Government will be aware that the proposal in effect to add to that Act further provisions about the retention of communications data will be taken seriously by Members of this House and interested parties outside, in particular by the communications industry. We know how serious the issue is and how potentially dangerous it could become if it is not handled correctly—that could affect the economic well-being of this country and the communications industry in particular.
	As has often been made clear during the Bill's passage through this House, we are prepared to accept additional measures provided that they are purely for the purpose of safeguarding national security. When the Government introduced the Bill and when they discussed it outside—in the press, for example—they made it clear that that is their reason for introducing the legislation. However, when we tried to pin down the Government over safeguarding national security or countering terrorism, they argued that they would like to take such steps but that such provisions would prevent them from accessing data and conducting investigations that might, on the off-chance, provide leads in the fight against terrorism.
	The Government will have to be clear in their response to this group of amendments. Clause 102(5)(b) contains an additional rationale for the provisions in the code. It states that the code may contain any such provision that is needed,
	Xfor the purposes of the prevention or detection of crime or the prosecution of offenders".
	That is the broadest possible inclusion provision. The rest of subsection (5) states:
	XA code of practice or agreement under the section may contain any such provisions as appears to the Secretary of State to be necessary . . . for the purpose of safeguarding national security".
	In other words, if paragraph (b) were deleted, the Secretary of State, after consultation with the industry and the Information Commissioner—subject to the other provisos within Clause 102—would be able to draft the code in such a way that he could access the information and communications necessary to safeguard national security. If paragraph (b) were omitted, there is no question that the Government could not do what they wanted to do to counter terrorism in respect of accessing communications data. However, if the Government insist that they require the inclusion of paragraph (b), or similar provisions, that would mean that they want to go much further than the prevention of terrorism; it would suggest that they wanted to use the provisions as a general power in order to examine a wide range of crimes, which may be very serious but which do not involve the emergency. I look forward to the Minister's response.

Lord Elton: It is easy to anticipate the Minister's response. It will be, as it has been so often, that any crime is potentially a terrorist crime, whether it is shoplifting, breaking the speed limit or blackmail. For that reason we are hesitant about giving the Government the emergency power procedure for the processing of this Bill.
	I ask a simple question. I thought that I had brought with me all the relevant legislation, but I do not have the Regulation of Investigatory Powers Act, and hence I do not have Chapter 2 of that Act. I would like a definition of Xcommunications data". I presume that that does not mean the information transmitted—for example, the contents of a conversation—but the fact that two telephones, or two communications stations, have been in touch with each other, the time when they were in touch and for how long and, if one of them was a mobile, where it was. I seek reassurance that that huge amount of information is now to be warehoused.
	I also have a question for the noble Lord, Lord Phillips of Sudbury. Amendment No. 171, in the second line under subsection (10), says,
	Xmay only authorise or require that",
	which leads one to look for the words Xshall be". Without those words I cannot interpret the effect of the subsection. I do not want to appear difficult, but it would help to know the impact of the subsection.

Lord Lucas: I entirely support what has been said. Perhaps the Minister can enlarge on the rights under the Data Protection Act for an individual to obtain such data that is to be retained. Considering some of the wilder possibilities, in relation to packet headers there will be vast amounts of data. It will be extremely difficult for a communications provider who is asked to dig out anything that is relevant from their records to do so without incurring a great deal of time and expense.
	Recently it has been established that the data that a mobile phone provider holds of a location from which and to which mobile phone calls are made is personal data and can be retrieved by someone under the Data Protection Act. Therefore, I presume that all such communications data will also fall under that heading. We are not considering imposing an occasional burden on the telecommunications provider to look for something for the Government, but a burden to have to do so for every single customer or citizen of this country, or anywhere else, who happens to cause a little disruption by asking for the information. We have to understand how enormous this data supply is and how undirected it is.
	Some of my e-mails go through a mailbox. The information in an e-mail can be picked up as easily as someone can look at my telephone bill, although much of it does not touch the sides and is transmitted as packets. Information is squirted into the Internet and arrives at the other end through whatever routes it may happen to take. There may be no record of it other than the packet headers, which, as has been said, is about a terabyte a day or the contents of a DVD every second. Those enormous amounts of data are impossible to search unless they are on line. If so much information is available about the individual citizen, it comes down to 1984.
	We must understand the Government's intentions in relation to particular kinds of data. They must have a clue as to what type of data they are considering retaining and for how long. The retention of some data has immense cost implications, nationally and indeed on individual telecommunications providers. One wonders why the Government will need it. If a terrorist organises himself properly, he will not appear. He will hide or cloak himself and he will not appear in any of the easy places. It will be immensely difficult to track him down.
	The only people against whom such data will be useful will be the ordinary, everyday criminals who do not know how to take the #1,000 or #2,000 worth of precautions that would enable them to avoid the Act. The Government must be clearer about why they want these provisions.

The Earl of Onslow: My noble friend Lord Lucas said that the Government must have a clue about what they want to learn. That statement is almost incredible. Recently it has been published that MI5 and MI6 asked to listen to calls made on certain telephone numbers and they got a large percentage of them wrong. I am worried that our forces of law and the forces of our counter intelligence and intelligence services are not as good as they should be. For that reason the Home Secretary has reasonably taken a great interest in the performance of the police. The more one hears about matters going wrong, the more depressed one becomes. I am unsure whether we should give them extra powers to store telephone numbers to which they should not be listening anyway.

The Earl of Erroll: I agree with everything that has been said by the noble Lords, Lord Phillips and Lord Lucas. I was interested to hear the noble Earl, Lord Northesk, say that much of the information that is used to catch terrorists at the moment is obtained by trawling communications data. Was that authorised? Or was such a practice already used? And, if so, in which countries? How much of that data is picked up in that way? If only the packet headers and so on are being kept, that is probably not much use. Are the Government seeking powers to trawl through the contents of such data? Is this yet another back door way in?
	It may be considered that noble Lords are being paranoid, but I think back to J. Edgar Hoover, the data that he kept on people and the blackmail that he exerted, which caused big problems in the United States. This provision provides a chance for someone to do that again. History has a habit of repeating itself. One thing that we can learn from history is that we never learn the lessons of history.

Lord Peyton of Yeovil: I am sure that the Government want to do what is sensible and intelligent, but sometimes that is quite difficult. It is easier to do stupid things. I believe that the Government are caught. I am sure that they do not want to do stupid things, but they have not found an easy alternative to the course that they are pursuing in this Bill.
	At the outset, the Government said that following the events of 11th September they urgently needed powers to combat the horrors of terrorism in its modern and latest versions. I believe that that aim commanded wide respect among most of the Members of the House including myself. I believe that this is a drafting difficulty, but the Government do not appear to know what they mean by terrorism. Is that so? That is virtually the only explanation.
	The noble Lord, Lord Phillips, referred to the Orwellian provisions that we now face. I cannot help but feel that the Government are conscious of the fact that that view of the present proposal is widely held. I am prepared to believe that the Government would want to avoid provoking the kind of opposition that they are provoking on all sides of the House. Therefore, they should come clean and say that it is a difficulty of defining terrorism and confining the provisions of the Bill to that particular purpose.
	It seems to me that we are possibly going into Cloud- cuckoo-land if that is really true. But I cannot think of any other reason why the Government should want so obstinately to bring down on their head such a degree of very deeply entrenched opposition. There is no party ingredient in it at all. It is an opposition from people who would willingly arm the Government with any powers that are plainly necessary or desirable to secure the defeat of terrorism. But to give them such powers Xjust for good measure" to perform a much wider function is quite intolerable.
	I have become confused. I am sure that I am not the only person. Perhaps the Government will try to clarify things. There have been other occasions, not under the present Government, when I have been told that a certain just and fair measure, which everyone wanted to achieve, could not be taken because it would involve taking an unconstitutional route. Eventually, when the government could not get their way, they would take the matter back and start to think. Finally, they would hit upon an extremely complicated, almost incomprehensible, way of doing what everyone wanted to do but in a manner that subsequently turned out to be fair.
	What I am trying to say to the Minister is that I very much hope that he will not be content with the conventional briefing which ends with the word Xreject". The Minister is capable of great candour and openness. I respect that. He could make a very good impression. He could make a real contribution to the easier passage of the Bill if he took it upon himself to say that he recognised the real difficulty and the depth of genuine feeling that existed on this subject in your Lordships' House and would take the matter away so that he and his colleagues could have a real opportunity to give it fresh thought.

Lord Phillips of Sudbury: Before the Minister rises, I was asked by the noble Lord, Lord Elton, whether the wording was right or clear in my Amendment No. 171. The wording is not as clear as it should be. Where the amendment states:
	XAn authorisation under section 22(3), or notice under section 22(4), may only authorise or require that data",
	it would better say,
	Xmay only authorise or require access to data".

Lord Rooker: We have had a very interesting debate on this group of amendments. I really enjoyed the speech of the noble Lord, Lord Peyton. However, I do not think that it had a great deal to do with the amendments. I shall address his points. They are valid and could have been made in relation to various parts of the Bill. Indeed, I recall that he has made them on various parts of the Bill.
	My candour will continue unabated but measured. There will be no going over the top. However, there have been a few misconceptions. To describe the legislation as Orwellian is fanciful. I cannot say often enough that we are not interested in the content of any communication. The noble Lord shakes his head. The noble Earl, Lord Erroll, from the Cross-Benches said that we were off to do the dirty deeds that were done in America and that central government would be blackmailing people. It is preposterous to make those kind of remarks and allegations on the basis of what has already been said and written. We are not interested in the content of any communication between two people, either over the Internet or by telephone. That is it—period.
	We are interested in the information that is already retained by business for its purposes, namely, the two numbers that may have communicated with each other, the date and the duration of the call, and, also, because in certain circumstances it is possible to access the information, the locations of where the calls were made and received. That is nothing new.
	I shall try to answer all the points in the debate. Members of the Committee have gone through these important amendments and I have statements that I want to make regarding them. I start by saying that the NCIS report that was referred to is not the basis of these provisions. There is no warehousing. There will be no excessive retention period. I cannot say what the retention period will be. That will be a matter for discussions and for the code of practice. The Observer said that the period would be seven years. The Government do not accept that. We are not talking about that kind of period. For the avoidance of any doubt the period will be shorter. It is no use my speculating further. That will be in the code of practice and it is no good my trying to speculate about the content. I have indicated the kind of data that we are talking about. It is business data that is already held by business. It will be a matter for consultation. The principle of proportionality has to apply anyway.
	I ask Members of the Committee not to confuse retention of data with access to it. Access to data is not governed by the Bill and these clauses. That is a matter for the Regulation of Investigatory Powers Act. The Interception Commissioner, whom no one has mentioned, is involved with that. We have said, and I repeat, that we shall fully comply with all the rules laid down in that Act, as well as the human rights legislation, in operating the retention provisions.
	There are two issues here—retention and access. The provisions deal with the retention of data. The access of it will be governed by other legislation.
	Members of the Committee have raised fair points regarding the Data Protection Act. I am not criticising them. There are some key questions to be answered so that we do not get unjustified public concern. Under the Data Protection Act there is no need to comply with subject access if it involves disproportionate evidence. Guidance on the subject of access can be put in the code after consulting the commissioner. I have already said that at present if data is stored for business purposes it can be accessed for law enforcement. No data have been obtained unlawfully. That will not change.
	I cannot comment on the issues raised about the wrong digit in telephone intercepts. I personally do not deal with that and know nothing about any mistakes. From my experience in the other place, I can say that there is far more scrutiny and oversight of the security services these days. They are now on a statutory footing. It is a tribute to the previous government that they put them on a statutory footing. Mistakes can be made. The beauty about today's system is that it is more likely that the mistakes will be discovered. We can learn from that. That is not an unimportant point.
	The RIPA—I hate using that terminology because it does not sound good on the box, friends tell me—the Regulation of Investigatory Powers Act provisions are not yet implemented. They will not be until next year. There may have been data about 11th September that would have been of use had it been retained, not destroyed, by service providers. They all have their own business rules for retaining data and operate differently. We are trying through the code of practice—which I again emphasise is voluntary—to create a system so that we all understand what we are doing.
	The amendments would have two effects: they would change the purpose for which data may be retained by communications service providers under the code of practice arrangements and introduce a proportionality clause. They would remove the crime detection and prevention purpose and restrict the code's provisions to national security. Frankly, that betrays a misunderstanding of how the terrorists operate. We cannot draw a distinction between terrorist activity and other crimes; that would be incredibly difficult. There is a necessity issue connecting other crimes to crimes of terrorism, but there is a legal issue about setting that out in the Bill. In any event, as I said before, if the provision were narrowed to purely terrorist activity we would not have the opportunity to catch other people involved in funding, organising and being ancillary to terrorist activities—helping them to take place.

Lord Peyton of Yeovil: I thank the Minister for giving way. When he uses the words Xit would not catch", I suspect that the Government are facing difficulty in saying exactly what they mean and no more. In the Minister's words, the difficulty is to catch other things.

Lord Rooker: There are two reasons. Defining terrorist activity is not easy. It is defined in the Terrorism Act 2000, but terrorism consists of ordinary crimes such as murder. We know, because of how terrorists have changed the way in which they work in recent years—how they conduct their activities—that they use other crimes that would not normally be considered terrorist. That is the point. If we can lock down such other crimes that may fund and assist terrorist activity, we can take precautions against that activity. That is the object of the exercise. So, even if we could find narrow definitions and include them in the Bill, it would not make sense to do so.

Viscount Goschen: I am grateful to the Minister for giving way. I think that to an extent we are talking at cross-purposes. Many Members of the Committee who have spoken in favour of restricting the provision to national security agree with part of his argument. However, could not subsection(5) just read: XThe code of practice may include any such provision as appears to the Secretary of State to be necessary for the purposes of safeguarding national security"? Surely that on its own would give the Minister all the powers for which he is looking.
	For example, if the Secretary of State felt that trawling through information relating to drug trafficking was useful for catching terrorists, he could say, XThat is my purpose; I will therefore spell out the code in that manner". All that we are trying to do is to narrow down the provision so that it is not deliberately used for crimes totally unrelated to terrorism.

Lord Rooker: I want to address all the amendments because arguments for them have been deployed at some length and I do not want to short-change the Committee. I shall go through each amendment, because it is better to put the argument on the record.
	The two purposes included in the Bill are consistent with the terminology of the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Data Protection and Privacy) Regulations 1999. I keep going back to this but in due course I shall also give the answer on the definition of communications data. Both of these pieces of legislation refer to national security and the prevention and detection of crime. Maintaining the dual structure of national security and crime prevention ensures that terrorist acts are fully covered.
	Removing the second purpose of the code and agreements, which is to prevent and detect crime and to prosecute offenders, would make no sense in practice. It would not affect requests to access the data, which will be regulated not under the Bill but under the Regulation of Investigatory Powers Act 2000 and overseen by the Interception Commissioner. However, it would undermine the operational efficiency of the police in combating crime because their wider responsibilities could not be taken into account in drawing up the code. The provision will rely heavily on the code, which, I repeat, is voluntary.
	The second part of the amendment is simply unnecessary.

Lord Lucas: I thank the Minister for giving way. He is saying that the provision in paragraph (a) deals entirely adequately with everything that the Government want for the security situation but that they will hang on to a wider provision just because it is there. The Bill is emergency legislation, and we should not have provisions in it that have nothing to do with the security situation.

Lord Elton: With due respect, perhaps I could elaborate a little because I think that the Minister genuinely does not see where we are coming from. Parliament has decided that if someone is arrested on suspicion of burglary he shall nevertheless have his human rights protected in certain ways because he may be innocent. The Government are saying that such a person will have his human rights diminished because he may be a terrorist, and that that will apply to all cases. That is where we are coming from.
	There is difficulty distinguishing what is a genuine terrorist-connected event and what is not. I sympathise with the Minister about his difficulty, but if he understood that those are the two polar opposite points of view that we occupy he would at least see what we are driving at.

Lord Rooker: To be honest, I have no difficulty at all. We have said that the operation of the Bill will fully comply with data protection and human rights legislation. There will be no problem with anyone's human rights being put at risk by our misuse of the Bill. I can accept that Members of the Committee have doubts about that that I have not yet been able to satisfy, but if I may continue I may make some inroads on that. I shall certainly do my best.
	We fully agree that the provisions of the code and the agreements must be proportionate to what they are intended to achieve. Otherwise, our purpose is defeated. If they are not proportionate, they will be thrown out, deemed irrelevant and be subject to all kinds of attack. So there is no need for an explicit proportionality clause. The code must comply with the principles set out in the 1999 telecommunications regulations and the Data Protection Act 1998. Both of those pieces of domestic legislation implement EC directives that were designed to be compliant with Article 8—the right to privacy—of the European Convention on Human Rights. Proportionality and necessity are key principles of the ECHR.
	So there is no secret agenda to undermine anyone's human rights in the operation of the Bill. We intend to make our legislation and our operation of it fully compliant with human rights legislation. That is absolutely clear. I make that pledge as firmly as I can.
	I turn to Amendment No. 167B, which would have two effects. It would change the purpose for which data may be retained by communications service providers under the code of practice and agreements and introduce a refinement to necessity and proportionality. The amendment is intended to replace the crime detection and prevention purpose with a counter-terrorism purpose. I have already said that that betrays a misunderstanding of how the terrorists operate.
	I turn to Amendment No. 168. Without winding-up the noble Lord, Lord Peyton of Yeovil, I must tell him that Xresist" is the first word on my brief, not the last one. I do not know if he has been here all day, but I have accepted one amendment from the Opposition Front Bench, so it has not been a completely futile operation.
	The amendment would change the purpose for which the data may be retained and so we are faced with the arguments which applied to the previous amendments. If we restrict to countering terrorism the purpose for which data may be retained under the code and the agreements, it would make no sense in practice. Indeed, it would not effect—I repeat that it would not effect—the access to the data. I ask Members of the Committee to keep in mind throughout all the debates the distinction between the retention of the data as regards this legislation and the access to the data which is governed by another piece of legislation the operation of which is overseen by the Interception Commissioner.

Lord Phillips of Sudbury: The Minister distinguished between access to the data and retention of the data. The amendment I moved is designed to cure the difficulty because it would apply to access as well as to retention.

Lord Rooker: We have no problem about the access rules. The operation of access would be laid down and is governed by legislation which is already on the statute book with an independent Interception Commissioner to oversee it. Therefore, we do not see the necessity of including it in this legislation. It deals solely with the retention under the code of practice.

The Earl of Northesk: Does the Minister recognise the fact that there may be some benefit in linking the access regime to the retention regime, which is the purpose of Amendment No. 171? It creates a tidier whole.

Lord Rooker: No, I do not. I have not yet dealt with Amendment No. 171, but I do not agree with the noble Earl. In this respect, it is important to keep the retention separate from the access. As regards retention, we are seeking voluntary agreement. We have every reason to believe that we can arrive at such an agreement which is completely acceptable to the entire industry. It will be achieved by a code of practice which the Government will not enforce. It will be voluntary.
	Access to the information by those who carry out the investigations is governed by legislation which was well debated in both Houses. It would be a mistake to link the two—and I say that before I have dealt with the amendment. It may be that there will be reference to it in the code of practice—that is not ruled out. However, we are not writing the code of practice here today. The code of practice is for discussion and consultation with industry and the Information Commissioner.
	I turn to Amendments Nos. 170 and 171.

The Earl of Northesk: Perhaps I may make the obvious point that if it is appropriate to have the regime of access on the face of primary legislation in the Regulation of Investigatory Powers Act, why is it not appropriate to have it on the face of this Bill instead of hiding it away in the code of practice?

Lord Rooker: The noble Earl refers to having access under the Bill. That does not make sense because it is about retention. I merely point out that I am not writing the code of practice here today. I cannot say what will be in it because it will be a matter for discussion with industry. It is a voluntary code; the Government will not impose it. I cannot pre-judge what the results of consultations will be. I do not know whether it will be seen appropriate to refer to access to the information. We do not have a fixed view on the matter and that is the whole point about having discussions on a voluntary code of practice.
	Amendments Nos. 170 and 171 would remove the prevention/detection of crime as a purpose for the retention of data and would prevent data which are retained under Part 11 provisions from being accessed under the Regulation of Investigatory Powers Act for any purposes other than national security.
	Before seeking to change the purposes for the retention of communications data set out in the Bill, it is important to understand something about how terrorists operate. I repeat the point about drawing the distinction between terrorist activity, attacks on national security and other crimes. The distinction is a false one. Terrorists often engage in a whole raft of criminal activity, whether drug running, people trafficking, bribery and corruption, in order to finance and supplement their main business.
	Furthermore, restricting the purpose for which data may be retained under the code and the agreements to countering terrorism would make no sense in practice. Those two arguments—that is, the messiness of the distinction between terrorism and other forms of crime and the impact on the effectiveness of the law enforcement agencies—preclude us from restricting the retention purpose to national security alone.
	Amendment No. 171 proposes to amend the access provisions in the Regulation of Investigatory Powers Act 2000. Data retained under the provisions in this Bill will be kept for a dual purpose in data protection terms: first, for business purposes—billing, traffic management, direct marketing and so forth; and, secondly, for law enforcement purposes—the two purposes set out in Clause 102(5). It will therefore be impractical to distinguish between data held pursuant to these provisions and any other data.
	If two conditions are met—first, that communications data are available, whether held under the provisions of the part or for any other legitimate reason and, secondly, the Regulation of Investigatory Powers Act access thresholds of necessity, proportionality and so forth are passed—why should public authorities be prevented from obtaining data for the reasons set out in the statute?
	The noble Earl's amendment would mean that no communications data could ever be accessed by authorised public bodies for any purpose other than national security. It would completely undermine a whole chapter of the Act which was passed by this House only a year and a half ago. Our conviction at the time was that all the purposes listed in Section 22 were justified and I see no reason for that to have changed. I hope that that is a satisfactory explanation.
	I turn to Amendment No. 174. It would restrict the grounds for seeking an order to impose mandatory directions to Xsafeguarding against terrorism". I would argue that noble Lords are again making a false distinction between terrorism and other crimes.
	In terms of communication, we must recognise the centrality of communications data to the non-terrorist related business of the security, intelligence and law enforcement agencies. The only acceptable criteria for introducing a mandatory scheme is if the voluntary scheme fails. We do not want it to fail. The Government fully intend to use their best endeavours to ensure that a voluntary scheme is operated in co-operation with industry.
	In that regard, I hope that Members of the Committee will be reassured that the access provisions under the Regulation of Investigatory Powers Act are subject to judicial oversight by the Interception Commissioner, who is a senior member of the judiciary. He is responsible for ensuring that access is carried out in accordance with the principles of necessity and proportionality set out in the European Convention on Human Rights.
	As regards the period of retention, there will be consultation about what is reasonable for industry and what is necessary for law enforcement. We shall have to come to a measured conclusion to get that right. There will be arguments and, I suspect, disagreements in debate and I hope that we shall then arrive at a conclusion that is acceptable to everyone; that is, the Information Commissioner, the Government and the information providers.
	The period must be compliant with EC directives. If it is too long, which I suspect will be the seven-year figure mentioned in the Observer, it will be subject to challenge by the European Commission. We are not completely free agents and that is right. We bound ourselves to an international treaty which we have introduced in domestic legislation.
	As regards the definition of Xcommunications data", I regret that I was asked the question because I now have the answer in front of me. I know that if I read it out at this time of night I shall get it in the neck. However, I shall make a start. In the Regulation of Investigatory Powers Act 2000, Section 21(4) gives a definition of Xcommunications data" and it means any of the following. I shall not read it all, but paragraph (a) states:
	Xany traffic data comprised in or attached to a communication (whether by the sender or otherwise) for the purposes of any postal service or telecommunications system by means of which it is being or may be transmitted".
	Paragraph (b) provides:
	Xany information which includes none of the contents of a communication . . . and is about the use made by any person—
	(i) of any postal service or telecommunications service; or
	(ii) in connection with the provision to or use by any person of any telecommunication service".
	Paragraph (c) provides:
	Xany information not falling within paragraphs (a) or (b) that is held or obtained, in relation to persons to whom he provides the service, by a person providing a postal service or telecommunications service".
	I have not quoted the provision verbatim, but that is the general thrust of the definition of Xcommunications data" in the 2000 Act.
	We have had a fairly long debate—I make no complaint about that, far from it—in which a number of questions have been asked and red herrings have been put forward for public consumption. I hope that I have either squashed or eaten them. We do not seek to know the contents of telephone or e-mail communications between people; nor do we want business to retain them or access them. I cannot make it clearer than that. We seek to work with industry in a wholly voluntary way. Our fallback position is there, and in part the matter is subject to a sunset provision to demonstrate our goodwill. We seek genuine co-operation in the interests of law enforcement.
	I agree that this matter is being put through the House in an Xemergency" fashion, but this measure is related to an emergency and we need better information. We have not sought to use a blunderbuss but voluntary access. Since the events of September 11th we have had good co-operation with the industry that has proved to be extremely useful, for which we are extremely grateful.

Viscount Goschen: Perhaps I may direct the attention of the Minister to my earlier intervention which concerned Amendment No. 170. Can the Minister explain to the Committee how, if subsection (5)(b) is removed, the Secretary of State's power to combat international terrorism will be constrained, given that he will then be able to draft the code in such a way as to include any provision as appears to him to be necessary for the purpose of safeguarding national security?

Lord Rooker: I cannot do so other than to repeat what I have already said. All I shall do is repeat my comments in dealing with Amendments Nos. 170 and 171 which were taken together. All I can do is suggest that the noble Viscount looks at Hansard tomorrow. I am quite happy to stand at the Dispatch Box for another 10 minutes and go through it again, but I do not believe that that would be a good use of the Committee's time.

Viscount Goschen: With the greatest respect, that answer is not worthy of a government Minister who seeks to explain the Bill. I do not want to hear merely a repetition of what the noble Lord said, because it did not satisfy me. The Government have said that the Bill is designed to combat international terrorism. Under subsection (5)(a) the Secretary of State is allowed to draft a code in consultation in such a way as to include any provision he likes which will assist in combating terrorism and preserving national security. If he can do anything he likes to achieve those aims, why is subsection (5)(b) necessary?

Lord Phillips of Sudbury: To add to that, if what the Minister has said and repeated is correct why do we need (a) and (b) at all? According to the Minister's explanation, the Secretary of State should be able to make such provision as he likes with regard to the retention of data—full stop. I rise in a genuinely helpful spirit. I understand the dilemma of determining whether a crime is or is not related to national security. Why cannot one say in subsection (5)(b) words to the effect, Xwhere the Secretary of State makes provision for the purposes of the prevention or detection of crime or the prosecution of offenders which may be related to risks to national security"? I believe that that would address the perfectly fair point that the Minister seeks to make about the blurring of the edges in terms of not knowing whether a crime is or is not related to national security.
	The provision starts by saying that the Secretary of State may do something. One needs a double Xmay" so that it reads Xwhich may be related". One would have thought that that would go a long way to satisfy the Members of the Committee on this side of the Chamber.

Lord Lucas: I believe that the Committee understands the direction from which the noble Lord comes. The Minister will be aware that individual learning accounts have been abandoned by the Government because terrorists have been using that open door to fill their pockets with cash. Therefore, very ordinary crimes can be used to fund terrorism, but the powers in subsection (5)(a) cover that. It is absolutely clear that that provision allows the Secretary of State to do anything which appears to him to be necessary for the purpose of safeguarding national security, which includes all those estimable things which the noble Lord, Lord Rooker, says the Government wish to do. Subsection (5)(b) must, logically, cover matters which are not necessary to safeguard national security and such a provision should not be in the Bill.

Lord Rooker: Earlier one Member of the Committee said that the Secretary of State could do what he wanted. The whole point is that he cannot. I cannot emphasise enough that it is a voluntary code. The Secretary of State is not taking powers here. We hope to obtain a voluntary agreement with industry, not to impose it. We want a voluntary working arrangement. To argue that the Secretary of State can do what he wants is not true.
	I suspect that many noble and learned Lords will trawl over what may be in the mind of the Secretary of State in defining Xnational security". Already one Law Lord has pronounced on it in the Rehman case, although we were informed last night by another distinguished member of the legal profession that we should not accept the opinion of one judge. Nevertheless, it is for the Secretary of State to interpret that.
	I do not believe that I shall satisfy the Committee. The noble Lord, Lord Phillips, has just rewritten part of one of the limbs of the clause while on his feet. I do not detect a great deal of difference between that and what is now in subsection (5)(a) and (b).
	There are good reasons for the way in which the provision is drafted, but it must be agreed with industry and the Information Commissioner. The Secretary of State will not have a draft code to offer for this purpose unless the interpretation of subsection (5)(a) and (b) is acceptable. The whole point about the voluntary code is that if industry does not buy into it, we shall not have one. The Information Commissioner must be consulted. If they do not buy into it, we shall not have a voluntary code. Whatever suspicions the Committee may have, each of the textual interpretations of the limbs will be satisfied certainly by the time of the publication of the voluntary code, because it will have been done with the agreement of industry and the Information Commissioner.
	Crimes are a legitimate reason for retaining the data. I was not involved in the Act passed last year, although like other Ministers I followed it as closely as I could. Both Houses recognised this matter. Some Members of the Committee have already taken part in this debate. I come fresh to the matter in a sense, but Members of the Committee have been round the course before and know the dark secrets of the debates which took place.
	The reality is that both Houses passed the Bill and it received Royal Assent. This matter was recognised when it was debated last year. It is probable that if we left out one or other limb the code of practice would be a glass half-full. I rest my case on the basis that, since it is voluntary, industry must agree it; otherwise, there is no voluntary code. The Information Commissioner will be involved, otherwise we will not get a voluntary code. For those reasons, I am quite confident that by the time a voluntary code has been agreed all the nuances and doubts about Clause 102 and subsection (5) will have been settled to everyone's satisfaction.

Viscount Goschen: Perhaps I may raise a small point. The Minister said that the industry has to agree. Is that really the case? I had thought that industry had to be consulted; that is, that the Secretary of State will consult and then decide whether to agree with the sentiments expressed by industry.

Lord Rooker: I have repeated the point that the Government will not impose the code. It is a voluntary code. I cannot make the point any more clearly than that. If industry does not want the code of practice, it will walk away from it. We would then have to look to the powers in Clause 103. We want to put in place a working voluntary code. I am being tautologous because I cannot explain this in any other way. Perhaps noble Lords have an agenda, or it may be a question that the penny has not dropped, or that I have not made the point.
	I appreciate the healthy degree of scepticism felt about what the Government are doing and about the intentions behind those actions. I am trying my inadequate best to make the point that if industry does not bite as regards the voluntary code, it will walk away from it. We shall then have an unworkable voluntary code and we shall have to move on to a statutory code. We do not want to do that. Our first priority is to establish a working agreement with industry and the Information Commissioner to establish a voluntary code.

Lord Lucas: The note from the Box has given it all away: ordinary crime will serve as a good enough purpose for keeping such information. So it might, but that has nothing to do with what should be covered by this Bill. It would be good to see this provision in another Bill dealing with ordinary criminal matters. That would give us time to consider its implications; that is, whether we would like to see traffic violations and other offences subject to the extended timescales contained in this legislation rather than those that were implicit in the Regulation of Investigatory Powers Bill.
	I have two further questions for the noble Lord. First, I refer to the point made that the data to be retained will be those which companies ordinarily would keep. If I understand that correctly, it will not involve the header information on packets in Internet traffic, which makes up the vast proportion of communications data carried over the Internet. That would mean that, for example, terrorists using a hotmail account or those wise enough to attach their own server to the end of a phone line will be entirely exempt from any of the effects of this part of the legislation because none of the communications data concerning them would be caught under any circumstances. I would be grateful if the noble Lord could confirm that that is what he meant to say.
	Secondly, can the noble Lord answer the question I put to him as regards the Data Protection Act; that is, whether any data held under this provision will be subject to the right conferred by the Data Protection Act for the individual concerned to request a copy of it?

Lord Rooker: To be honest, I know to my certain knowledge that I have answered that question. I have said already that the data will be retained but that it could not be accessed by an individual if it was disproportionate. I have covered the point regarding the Data Protection Act. I do not see any affirmative nods from noble Lords opposite, but I know that I have addressed this matter.
	Individual access to data would be subject to the provisions of the Data Protection Act. However, there is the issue of disproportionality as regards the individual. In an earlier intervention—I do not know whether the noble Lord's remarks are speeches or interventions—the noble Lord made the point that the threat or, if you like, the attack on the system was to overload it with requests for information. That was a wholly negative point but, nevertheless, one that has been well noted. So far as the individual is concerned, the Data Protection Act will cover that.
	As regards the noble Lord's other point on extra data, I probably now have to hand an extra note. I do not fully understand the details of headers and so forth. I have never used hotmail, although I have used Internet and e-mail services. I believe that I shall have to repeat what I said with regard to Amendment No. 177H. If I have not addressed the point, I apologise to the Committee.

A noble Lord: Amendment No. 177H is a future amendment.

Lord Rooker: Why am I dealing with it now? If I can answer the noble Lord's question then perhaps I shall be able to avoid an extra debate later on. That might be helpful. I shall put on the record a note that I have on Amendment No. 177H, which may answer the point put by the noble Lord. I am keen to give as many detailed answers as possible.
	The amendment would require the code of practice, agreement or direction issued under this part to include transitional arrangements. Under the Data Protection Act 1998, retention periods need to be proportionate to the purpose for which the data were collected. Therefore data which will be retained under the code of practice, for both business and law enforcement purposes, will be stored for a different period from data which are held at the moment for business purposes only.
	In addition, communications service providers may need time to adjust and possibly invest in new retention and/or retrieval systems. So we recognise that the code will need to make provision for transitional arrangements. However, this amendment is unnecessary. Transitional arrangements are a matter for implementation and will be considered in the course of consultation on the code of practice. Our expectation is that a voluntary code will work and that service providers would not sign up to a code which was not reasonable and practicable.
	On the point made by the noble Lord with regard to hotmail and what terrorists might do, to pure lay people like us it seems that they could not possibly be found out if they used other means which I shall not describe. I am surprised at the technological proficiency that is around these days, but if terrorists are in any case technologically proficient, we shall just have to keep one step in front of them.

Lord Lucas: If I have understood correctly what the noble Lord said about the Data Protection Act, the data will be accessible by the police but not by the individual to whom that data refer. I am not sure whether that is a delightful conclusion.
	So far as concerns Internet headers, I hope that the noble Lord will suggest to someone in the Box that they might drop me a note to answer my question with rather more precision. I shall then be content.

The Earl of Northesk: Dark secrets notwithstanding, this has been a wide-ranging debate. I thank all noble Lords who have contributed. I have not kept score, because there was no real need so to do, except to say that, regrettably, the Minister has scored nil.
	This side of the Committee has come to an agreement on what would be an appropriate way forward. It is that which makes the Minister's position unsatisfactory to us. I take heart from the opening remarks made an hour ago by my noble friend Lord Goschen. This debate must have felt quite like old times for the noble Lord, Lord Bassam of Brighton. It also struck me that my noble friend has all but shot the Government's fox in explaining that the amendments need not constrain the Secretary of State, or the wholly admirable task of countering terrorism, in the way that the noble Lord has sought to argue throughout our scrutiny of the Bill thus far.
	I should also point out to the Minister that I have always accepted the Government's assurances on content, a point which I made on Second Reading. Indeed, all my remarks on this amendment have been concerned with the pure business—to use the noble Lord's own word—data. There is no confusion in my mind on that point. I can also assure the noble Lord that I am not confused about the distinction between Xretention of" and Xaccess to" data. However, the difficulty is that while the noble Lord insists that all the Government want to see retained is billing data, that is not quite what is set down in the Bill. As drafted, the provisions raise the prospect of vast accumulations of data being retained, which in turn raises concerns about practicality that I have already mentioned.
	Most kindly, the noble Lord read out the definition of communications data from the notes on the regulation of investigatory powers to demonstrate the point. In pursuing that a little further, the Bill also confers powers to track the movements of everyone who carries a mobile phone. If business data were the only data already retained, no legislation would be needed. Furthermore, access to such business data is relatively easy. Part of the point of that is that RIP Act powers did not anticipate any degree of bulk retention when the Bill was before Parliament.
	As I have said, it would be easy to distinguish between data held for business purposes and for the purposes that are specified in the Bill. Thus a distinction must be made which the noble Lord has not quite explained to our satisfaction. CSPs do not want to hold the data the Bill demands they should hold, albeit they can distinguish the Xbusiness data", to use the noble Lord's term.
	As to the voluntary code, it is my understanding that the industry has been working towards one for years. The problem is that it has never had any agreement from governments—nor, indeed, from law enforcement authorities— as to what is required of it. The noble Lord may try to rest his case on the code being voluntary, but that cannot work if delivery of the voluntary code is stuck in a pipe in some way.
	I make no comment about the futility of this operation, but I am intensely disappointed by the Minister's response— the more so because my noble friend Lord Goschen has indicated a way out. I shall, of course, read extremely carefully what the Minister said. I have no doubt that I shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 167B to 171 not moved.]

Lord Bassam of Brighton: I beg to move that the House do now resume. In doing so, I suggest that the Committee should recommence not before one minute past nine.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Electricity and Gas (Energy Efficiency Obligations) Order 2001

Lord Whitty: rose to move, That the draft order laid before the House on 14th November be approved [10th Report from the Joint Committee].

Lord Whitty: My Lords, the Electricity and Gas (Energy Efficiency Obligations) Order is an opportunity for a significant step forward in the promotion of domestic energy efficiency in Great Britain. The main purpose of the order is to place an obligation on electricity and gas suppliers to achieve targets in energy efficiency. They will do this by encouraging and assisting their domestic consumers to take up energy efficiency measures.
	The energy efficiency obligation, more commonly known as the energy efficiency commitment, or EEC, will have three important benefits. First, we estimate that it will cut greenhouse gas emissions by around 0.4 million tonnes of carbon a year. Secondly, by helping electricity and gas consumers to save energy, it will reduce their fuel bills, or they may choose to enjoy greater comfort by living in better-heated homes without increased costs. Thirdly, it will give practical and particular help to lower income consumers who spend a larger proportion of their income on energy. This will contribute to the alleviation of the problem of fuel poverty.
	The order sets out an overall obligation on all electricity and gas suppliers of 62 fuel-standardised terawatt hours of energy savings. This is a challenging but achievable target. It represents a significant increase in activity over the programmes that have been operated successfully since 1994 by the regulator, Ofgem. The cost of meeting their targets will fall on suppliers, but, even if it was passed on in full to their customers, it should be no more than #3.60 per customer per fuel per annum.
	The order also sets the framework for the EEC to be administered by Ofgem. Ofgem will set the energy efficiency targets for individual suppliers and monitor their achievement. It will also be responsible for their enforcement.
	The order offers a balanced approach to achieving environmental and social objectives. It contributes both to our range of actions for tackling climate change and to the eradication of fuel poverty. With this in mind, I commend the order to the House.
	Moved, That the draft order laid before the House on 14th November be approved [10th Report from the Joint Committee].—(Lord Whitty.)

Lord Glentoran: My Lords, I thank the Minister for bringing forward the order. While my party applauds any move to arrange an effective target for carbon savings, the issue of cost is an important concern. The Electricity Association, in particular, feels that householders will greatly suffer in terms of price. While DEFRA officials have stated that they hope that the increase in price will be met to some extent by suppliers, the regulator, Ofgem, seems to believe that local authorities will assist suppliers with expenditure. The Electricity Association claims that consumers will have to bear the full brunt of the changes. According to the very nature of the energy supply industry, it understands that suppliers will not subsidise the additional costs.
	These facts seem to beggar some extremely important questions. Who will pay for these energy efficiency targets? Will the Government outline how much they estimate the average householder will be affected by these measures? The Government estimate that the average annual financial gain for those in the priority group of lower income consumers who would benefit from measures under the scheme, either in lower energy bills or increased comfort, would rise to around #14 a year by 2005. The Electricity Association claims that the Government have been over-generous in their attempt to estimate the effectiveness of energy efficiency measures, and consequently have understated the resultant costs.
	While I and my party wholeheartedly commend energy saving initiatives, my consultations with the industry lead me to believe that the Government have not lent a rational argument to both the proposed costings and timescales. Will the Minister enlighten the House and tell us who will pay, and how much?

The Earl of Mar and Kellie: My Lords, I regret that my noble friend Lord Ezra is unable to be in his place. He has given me three succinct sentences of what he would have said. I suspect that the Government will appreciate these words. This is a measure which these Benches supported during the passage of the Utilities Bill. We are very much in favour of the energy efficiency obligation. We very much welcome that there will be an annual report on the progress achieved.
	The House will not be surprised to learn that repeating three succinct sentences is not quite my style. Therefore I should like to raise a connected issue. Before doing so, I declare an interest in that I sell firewood on a very small scale. That said, I am very concerned about the practice of local authorities Xburying" fuel in the form of waste wood. I regard this practice as complete energy inefficiency.
	I recognise that recently we have been removing—or not installing in homes—chimneys, flues, stoves and grates. The Minister mentioned the issue of fuel poverty. I have always felt that by having houses with only automatic systems—ones which consume the electricity and gas so clearly covered by the order—people enduring fuel poverty are unable to do anything about it. I hope that the Minister will be able to give some leadership towards enabling citizens to acquire some of the waste wood which is otherwise being buried. I feel like weeping buckets when I am at the skip site at Forth Bank, in Alloa, as I am frequently, to see so much fuel being buried.
	I do not know whether waste is a devolved matter. I see it as energy, and energy is a reserved matter. At the risk of starting a turf war, I hope that the Minister can offer some leadership on the matter.

Lord Whitty: My Lords, I thank the two noble Lords who have spoken from the Opposition Benches.
	Perhaps I may reply to the point raised by the noble Lord, Lord Glentoran, about costs. I should preface my remarks by pointing out that there have been lengthy and at times somewhat difficult discussions with suppliers, users and others during the various phases of consultation. The process began in March last year and went through its various stages until it reached the final stage of statutory consultation.
	During that period some of the figures have changed to take account in part of the views of the Electricity Association and other suppliers. The figures that we have now alighted on for the picture in 2005 are broadly achievable—as is accepted by most of those involved. It is true that some achievements in energy efficiency are not easy. They will be cumulative over the period up to 2005 and beyond.
	That said, we should expect the average gross benefit to households, having installed the energy efficient measures—or, alternatively, having heated their houses at the same cost but to better effect—to be over #15 a year for the low income groups, at whom the bulk of the measures will be targeted. The average for all groups will be approximately #11 a year by 2005. For those in the non-priority group, the saving will be between #8 and #8.50. That is the figure at the end of the process. In the interim, if the supplier companies pass on all the costs of meeting the targets, the maximum cost per customer should be no more than #3.60 per fuel per annum. The benefit beyond 2005, however, will be a net benefit, even to the non-priority groups, of nearly #5 in their fuel bills.
	The cumulative effect of the measures over the three years in which they will operate will lead to a net saving for all groups of some significance, and to a very large net saving for those in the direst need, who are in the fuel poverty bracket and close to it. I hope that my remarks explain the noble Lord's point.
	I turn to the comments of the noble Earl, Lord Mar and Kellie, in the absence of the noble Lord, Lord Ezra—whose views on this matter are well-known and whose support for many of these measures we greatly appreciate. I recognise and appreciate the support from the Liberal Democrat Benches as enunciated by the noble Earl. The position on firewood, however, will not please the noble Earl quite so much.
	In regard to the general issue of fuel poverty and renewable resources, the Government recognise that the by-products of forestry and other agricultural activities can be used to produce energy. The most effective use of that energy is probably in biomass, and possibly in the production of liquid fuels. Nice though a domestic wood fire is, it is not the most efficient way of producing heat and not necessarily the most cost-efficient. Therefore, wood is not one of the fuels specified under the order on which energy savings can be achieved.
	I regret that, having declared his interest, the noble Earl may be caused some commercial disadvantage. However, there is a wider question as to how we use those by-products in a better way than in domestic grates and stoves to contribute towards greater energy efficiency. So far as concerns this process, wood will not play a role. Having answered those questions, I commend the order to the House.

On Question, Motion agreed to.

Lord Filkin: My Lords, I beg to move that the House do now adjourn during pleasure until one minute past nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.15 to 9.1 p.m.]

Anti-terrorism, Crime and Security Bill

House again in Committee on Clause 102.

The Earl of Northesk: moved Amendment No. 171A:
	Page 62, line 26, at end insert—
	X( ) A code of practice or agreement under this section shall include clear guidance to communications providers as to—
	(a) what classes of data shall be retained, and
	(b) a maximum period for which data may be retained."

The Earl of Northesk: The Chamber is somewhat emptier than it was before dinner. I hope that the purpose of the amendment is unambiguous and uncontroversial. It is merely to ensure that codes of practice and agreements define precisely the classes of data to be retained and the maximum periods for which they should be retained. No doubt the Minister will be tempted to say that that is stating the obvious and of course those elements will be included, but I can see no difficulty in putting them on the face of the Bill for the avoidance of doubt.
	Moreover, there is some merit in ensuring that the distinction between retained data and obtained data—about which we have had a fair amount of debate—is made a little more obvious and transparent in the Bill. The amendment would assist in that with its explicit references to retained data. That has the beneficial effect of making it clear that obtained data continue to be subject to existing provisions in the Regulation of Investigatory Powers Act. I beg to move.

Lord Phillips of Sudbury: I wholeheartedly endorse the amendment. I am not sure whether the wording makes it perfectly clear that the basis on which the data are retained shall be for ever labelled round the neck of that data. We want to avoid data being retained for one purpose and then being used under RIPA for another. However, we on these Benches support the broad purport of the amendment.

Lord Rooker: I apologise to the Committee for being a little late. The amendment would further define what provisions should be contained in the code of practice and agreements by stating explicitly that the code must give guidance on what types of data should be retained and for what period. I assure the noble Earl, as I have done previously, that the code of practice will contain a number of safeguards.
	As I have already said, retention practices in line with the code will comply with Article 8 of the European Convention on Human Rights—the right to privacy—and with the data protection principles. To do so, retention must be on a clear legal basis that is foreseeable and accessible for a purpose permitted by the 1999 regulations and must strike a balance between the purpose for the retention and the rights of customers whose data are retained. There will be a clear maximum retention period.
	On top of the safeguards suggested by the noble Earl, the code of practice will cover a number of other issues relative to the legal and practical aspects of retention but it would not be practical to put those on the face of the Bill. The code is intended to be technologically neutral so that it can keep up with developments in communications technology. That means that the detail of the exact types of data to be retained will not feature in the code but will be specified in the agreements negotiated with individual service providers.
	We will consider subdividing the generic definitions into broad classes of data, such as subscriber information, location data and traffic data. We shall have discussions on that in the course of consultation.
	In the light of that, I hope that the noble Earl will not seek to press his amendment. I repeat my apology for being slightly late.

The Earl of Northesk: I am grateful to the noble Lord, Lord Phillips, again for his support for the principle of the amendment and to the Minister for his explanation of the Government's position.
	I was somewhat thrown by the Minister's observation that the intention is that the code of practice should be technologically neutral. That is a little odd. The voluntary code will be a by-product of this emergency legislation. That suggests that it should have an end-life. To require it to be technologically neutral for the period of the emergency seems to be stretching the point somewhat.
	I heard the Minister's reassurance that the code would include a maximum period for which data are to be retained. However, his description of the classes of data appeared somewhat at variance with what he has previously said about the Government's intentions and the classes of data that they are interested in. Will the Minister clarify that point?

Lord Rooker: I would if I could. I do not think that I am contradicting what I said previously. I have pointed out that e-mail data are different from telephone data. In the past, I have talked about billing information—the addresses, telephone numbers, dates, times and duration of calls. It is no different from the broad classes of data, examples of which I have given. It is not prescriptive and will be developed during consultation. Subscriber information presumably deals with information relating to the subscriber—perhaps the number called from the subscriber's billing address and the traffic data, which is the duration of the call and the date.

The Earl of Northesk: I am grateful to the Minister for that clarification. I have to be content that the Minister is committed to ensuring that the code of practice will cover both classes of data and the maximum length of time for which it will be retained.
	I shall repeat a point that I made in the context of the amendment that we debated before the dinner break. A voluntary code has been in the offing for a number of years, but no progress has been made on its fruition. That has concerned communication service providers, in particular. Part of the problem is that there has been little or no agreement on the parameters of the code. The purpose of the amendment was to facilitate that agreement. I should hope that the assurances given by the Minister will take the matter forward, but in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Northesk: moved Amendment No. 171B:
	Page 62, line 30, leave out subsection (7) and insert—
	X( ) Communications providers acting in conformity with the code of practice shall not be liable to any criminal or civil proceedings in which the question arises whether or not the retention of any communications data is justified on the grounds that a failure to retain the data would be likely to prejudice national security."

The Earl of Northesk: I shall also speak to Amendments Nos. 176F and 177D, which are grouped with Amendment No. 171B.
	We return to the issue of how voluntary the code is. There is an argument in favour of creating appropriate conditions to encourage compliance with the code. If businesses are not exonerated from liability when acting in conformity with the code, in cases where the justification for data retention is challenged—I am certain that that could happen—there is little incentive for businesses to subscribe to the code.
	At present the Bill presents businesses with a dual risk. If businesses choose to comply and retain communications data, they could be liable for the unfair processing and disclosure of the subject's data. They could be in breach of the first and the third data protection principles. The Information Commissioner has been unequivocal about her perception of that issue. On the other hand, although it is the intention that businesses will not be held liable for failing to comply—after all, the code is voluntary—the Bill reserves for the Secretary of State the power to make mandatory provisions in respect of data retention. That threat hangs over businesses. In an attempt to address these problems, the amendment makes it clear that if businesses comply with the code, no liability will arise.
	Amendment No. 176F also proposes in a slightly different way that in order to provide legal certainty, a communications provider, acting in accordance with a direction properly given by the Secretary of State, may not be challenged under the Data Protection Act or any other enactment. The Secretary of State should provide a certificate to verify that a direction has been given. There is a precedent for that in Section 28 of the Data Protection Act. The amendment would simply bring legal certainty for the purposes of avoiding unnecessary legal action.
	Amendment No. 177D is the most crucial in the group. I apologise if I take a little time to address it. As I have already inferred, without the absolute certainty of legal protection against being sued, CSPs cannot contemplate doing what would otherwise be a breach of the Data Protection Act.
	Clause 102(7), as drafted, is wholly inadequate in this respect. First, it only makes a code or agreement admissible in evidence without making it conclusive and, secondly, while Section 28 of the Data Protection Act contains an exemption from all the data protection principles where such exemption is needed for national security, Section 79 on the prevention and detection of crime does not. In particular, it does not contain an exemption from the principle that personal data shall not be retained for longer than it is required.
	The Information Commissioner's memorandum on the Bill, published on 13th November states:
	XContinued retention of communications data by a communications provider beyond the completion of its own processing need, in order to satisfy the needs of others, is likely to contravene the 1998 [Data Protection] Act's requirements. The clauses providing for retention based on the provision of a code of practice or agreement would not necessarily remedy the situation".
	Can the Government explain how the provisions in the Bill would be workable if, as the Information Commissioner suggests, key elements may not be compatible with the 1998 Data Protection Act?
	CSPs have received advice from legal counsel indicating that there is no certainty that the voluntary code of practice proposed in the Bill would provide CSPs who comply with the code with legal protection. This would place CSPs in a wholly unacceptable legal position. Counsel's advice was that the retention of communications data pursuant to a code of practice potentially engages two of the data protection principles. The second principle provides that,
	XPersonal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes".
	The fifth principle provides that,
	XPersonal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes".
	The second principle states that purposes may be specified either in a notice to the data subject under the fair processing code or in a notification to the commissioner. This would mean that, in order to be a lawful purpose, the fact that communications data were being retained for national security and law enforcement purposes would need to be disclosed to the data subject. This could have negative effects on business in that customers might be unwilling for their information to be kept for those purposes. It could also result in a huge increase in data subject access requests. That is a point upon which we touched briefly previously, but to which we still have no satisfactory answer.
	We believe that a voluntary code of practice must be backed up by a clear provision for statutory immunity for CSPs in the text of the Bill. Hence the amendment which, in terms, states that compliance with a code of practice, agreement or direction renders a CSP immune from actions under the Data Protection Act and similar data protection legislation.
	The duty under the Human Rights Act to construct legislation so far as possible to make it consistent with human rights adds particular uncertainty. The amendment in this context seeks to provide a clear and unambiguous statement that in relation to the retention of data the Act we are debating today overrides conflicting legislation so that CSPs who comply with a code, agreement or direction can do so secure in the knowledge that they cannot be made legally liable in so doing. The Minister should be under no illusions as to the importance of that. Without absolute certainty about liability, the voluntary code simply cannot work. I beg to move.

Lord Rooker: Does the noble Earl want the voluntary code to work? I am not sure about that, having listened to the manner in which the amendments were presented. If the Opposition do not want the voluntary code as the first option and would prefer a statutory measure, let them say so. However, that is not the Government's intention. We want the voluntary code to work. I cannot emphasise strongly enough that we do not want to, and will not, put service providers in the situation that the noble Earl thinks they may be put in. I hope that I shall make that absolutely clear in responding to the three amendments.
	We have no intention of drawing service providers into breaking either the civil or the criminal law. The code of practice and the agreements will not be drafted in a way which is incompatible with data protection or human rights legislation. I have made that point about half a dozen times, if not more, during the course of our debates. However, it bears repeating to put it on the record so that industry can see the whites of our eyes and can be sure that what we say is what we mean.
	We are keen to ensure that any data kept for the purpose of safeguarding national security or preventing and detecting should be stored by service providers in accordance with the Data Protection Act. This means that data should be retained only for a period which is necessary and, of course, proportionate, and should be stored with the utmost regard to processing quality standards.
	Removing the possibility of legal challenge to service providers' retention practices would undermine the Government's commitment to ensuring that personal data are treated fairly and responsibly in line with the Data Protection Act. These protections work only if subject to a challenge in the court.
	In any event, we intend to draw up a code of practice that is compliant with data protection and human rights legislation and to consult fully with the Information Commissioner to ensure that the drafting reflects that. It is, therefore, entirely unnecessary and, indeed, bordering on the unhelpful, to introduce any kind of immunity clause.
	I turn to Amendment No. 176F. The amendment tabled by the noble Earl would clarify that data retained in accordance with a direction under Clause 103 were necessary for national security and the prevention or detection of crime as we discussed earlier.
	If a communications service provider is issued with a mandatory direction to retain data, his purpose for retaining it in data protection terms is that he is obliged by law to do so. Therefore, there is absolutely no question of liability, and a certificate from the Secretary of State would not add an iota of further protection. I am sure that any information service provider who took legal advice on this issue would immediately know that to be the case. It is hoped that that would give such service providers absolute coverage. They are entitled to the coverage and are entitled to seek it but, once they are in a mandatory situation, it is implicit that they have absolute immunity.
	I turn to a point which I suppose brings me back to my initial question. I understand that some sections of industry—I have not been involved in any discussions but I have received reports of them—would probably like to have the comfort factor of being able to say to their customers, XWe must do this; the law says so, and we are all treated the same". We are not going down that route. To begin with, we want a voluntary system in which everyone is treated equally and in which, it is hoped, no red herrings give rise to customer dissatisfaction with individual suppliers. We do not intend to play off one against another. That would be wholly unfair and an abuse of the Government's position.
	So far as concerns the final amendment in this group, I can only repeat what I have already said. We have no intention of drawing service providers into breaking either the criminal or the civil law. The proposed code will be fully compatible with human rights and data protection legislation. I can repeat the exact points that I have made on previous amendments but that would appear superfluous; they are the same word for word.
	With regard to the directions set out in Clause 103, if a communications service provider is issued with a mandatory direction to retain data, then, as I said, his purpose in data protection terms is that he is obliged to do so by law. Therefore, such providers have a copper-bottomed guarantee of immunity and no purpose is served by the proposed amendments being made to the Bill. I assume that, quite rightly, they have been tabled for exploratory and probing reasons in order to obtain firm guarantees from the Government and to have those recorded in Hansard.

The Earl of Northesk: I am grateful for the noble Lord's comments. I must confess that I am somewhat surprised by them. The thought strikes me that this is an issue in which Parliament should have an interest. Rhetorically—no more than that—I ask whether it is appropriate that potential conflicts in law should be, as the noble Lord suggests—at least I believe that that is what he suggests—resolved in a code of practice by negotiation between the interested parties rather than in primary legislation. That strikes me as a somewhat extraordinary proposition.
	That said, the noble Lord gave a number of very reasonable reassurances as to liability and whether or not there is a conflict here between the Data Protection Act and what is proposed on the face of the Bill. I am bound to say to the noble Lord that, whatever assurance he gives, there is a conflicting view on that issue. I am also bound to say to the noble Lord that that conflicting view needs to be resolved one way or another by Parliament. I shall not press the matter at this late hour, but I repeat that the noble Lord should be under absolutely no illusions. This is a very serious issue for the industry. If he sincerely believes that without resolution on the face of the Bill he will get a voluntary code, then I am sorry but he is living in Cloud-cuckoo-land.

Lord Rooker: I have not read all the correspondence. Have any of the service providers expressed the matter in such bold terms in writing to the Home Office? They have been in consultation; they have been in correspondence; and they have received assurances in writing from officials as well as at meetings. Are any service providers so concerned about this matter that they take that view? Have they put their demands in writing, saying that they will not co-operate with the voluntary code unless that is the case? I have no evidence to that effect. It may be so. I simply ask the question.

The Earl of Northesk: I merely repeat the point, which has been confirmed in writing to me, that communications service providers hold to the position that their legal advice is that the Bill as it stands exposes them to huge legal liabilities.

Lord Rooker: I do not want to negotiate over the Dispatch Box, but if providers have received such advice, I hope that they will put it to the Home Office when we are negotiating, discussing and consulting on the code of practice. It is no use submitting that information to noble Lords without sharing it with officials. That is said by way of an offer, not a complaint. That is what consultation is all about.

The Earl of Northesk: I note the Minister's comment and suspect that I should not be drawn any further. I repeat his point that we should not negotiate such issues across the Floor of the Committee. The fundamental issue remains that legal certainty should be on the face of the Bill because Parliament should have an interest. The matter should be determined by primary legislation.

Lord Elton: Perhaps my noble friend will allow me to go further. Surely it would not be possible to provide immunity through negotiation because immunity must be provided by statute. That is why the matter needs to be determined before the negotiations, not after.

The Earl of Northesk: I am grateful for my noble friend's intervention. He makes the point far more eloquently. I will not divide the Committee, but I am distinctly unhappy with the Minister's response. He may be assured that we will return to the point at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 172 and 172A not moved.]

The Earl of Northesk: moved Amendment No. 172B:
	Page 62, line 34, at end insert—
	X( ) It shall be the duty of the Secretary of State to ensure that a code of practice or agreement issued under this section does not place an unreasonable burden on communications providers.
	( ) A code of practice or agreement shall not expect or require a communications provider to retain any class of data that is not obtained or held by him during the normal course of his business."

The Earl of Northesk: With this, I shall speak also to Amendments No. 176A and 176B. Amendment No. 172B requires that codes of practice and agreements should not place an unreasonable burden on communications service providers and will not require them to retain data that are not part of the providers' normal business.
	The first part of the amendment mirrors similar provisions on unreasonableness in RIPA, thereby allowing for consistency between the two. The second part reflects, as I understand it, assurances given by the Secretary of State.
	Amendment No. 176A seeks to deal with a more awkward problem. The Bill allows the Secretary of State to make different directions for different communications service providers. No doubt that is to accommodate the variety of business models that operate in the sector—telephony, Internet and so on—and to allow flexibility. It could also give rise to inequities, so the amendment would place an obligation on the Secretary of State to ensure that a direction does not impose requirements on one communications provider that are significantly different from those imposed on another; and that requirements are reasonable and non-discriminatory.
	Coincidentally, as with Amendment No. 172B, Amendment No. 176A reinforces the Secretary of State's commitment that communications providers will not be required to retain data that they do not process or keep in the normal course of business.
	Amendment No. 176B also mirrors the wording of Section 11(5) of RIPA, so establishing the principle of reasonableness that is such a key feature of that Act, as well as ensuring consistency. The amendment minimises the risk of arbitrary directions and ensures that a direction takes full account of technical feasibility and other relevant factors. I beg to move.

Lord Phillips of Sudbury: I support this group of amendments in general but query the point about discriminating between one communications provider and another. If, as only the Government believe, the Bill and these clauses were to be confined to terrorists or terrorist-related circumstances, it would be perfectly rational to allow the Secretary of State to make directions in respect of a particular group of telecommunications providers or a particular telecommunications provider. That would be a focused, specific intervention.
	Even if this is forced upon the Government in a vote, I hope that we will return to a Bill based upon the kind of emergency that the measure was purported to deter.

Viscount Goschen: The sentiments that have led my noble friend to put down these amendments are important. The Committee will recall when we were considering the RIP Bill, there were essentially three principal concerns: first, the civil rights argument; secondly, whether the provisions would be effective; and, thirdly, whether UK-based communications providers would be disadvantaged compared to their international counterparts. Communications providers can move their services. The industry is extremely difficult to regulate. I hope the Minister will not maintain that it is only a voluntary code and so, if it is unreasonable, the industry will not have to comply with it. We are talking about a voluntary code but a voluntary code must work and be drafted in such a way that everyone can sign up and adhere to it.
	What discussions have taken place with our international partners to try to align the regulations in the RIP Act and the regulations in the Bill with those of our European partners and the US? During the debates on the RIP Bill one of the principal arguments was that if one had differing levels of regulation, service providers could move their services to the most friendly jurisdiction. It is important for the workings of this part of the Bill, as well as for the RIP Act as a whole, that we do see eye-to-eye with our partner countries in the fight against terrorism. I should be obliged if the noble Lord could answer those points.

Lord Rooker: If I have the information and am able to give it, then I shall be happy to do so. I shall take advice on what international discussions have taken place. There have been many discussions since 11th September but on the specifics of the question, if I am able to get the information, I shall certainly give it to the noble Viscount or write to him.
	The noble Viscount was quite right in forecasting one point I wanted to make. If the code is not reasonable, the industry will not sign up to it. Why should it? It makes no sense. Were I in that industry and I received good advice that the code was unreasonable, I would not sign up. We cannot conceive of how we could get agreement to a voluntary code if the industry believed it to be unreasonable.

Lord Elton: The main point is in the next clause. If it does not get the voluntary one, it will have to lump the compulsory one.

Lord Phillips of Sudbury: Industry will want to co-operate with the Government. The Minister should have no doubt about that. Everyone in your Lordships' House would want to see a voluntary code. But there is a central defect in terms of the scope of Clause 102. Industry is unlikely to refuse to play ball. That is not the nature of reality. It is going to negotiate and come to some sort of arrangement with the Government. However, that does not get us away from the defects to which the amendment relates.

Lord Rooker: I do not accept that for one minute. We should prefer to have a voluntary code and, in view of our contacts with the industry, we have every expectation of securing that. I am not going to give details of that consultation tonight because I am in no position to do so.
	I turn to the points of substance that have been raised. I do not deny that they are points of substance, but I do not agree that the amendment should be added to the Bill. The amendment would have two effects: it would guarantee that an unreasonable burden was not placed on service providers, and it would prohibit the retention of data that are not needed for business purposes.
	The first issue is dealt with in Clause 105. The Secretary of State is required to ensure that arrangements are in place to make appropriate contributions to service providers if he judges that it is right to do so. So far as I am concerned—I shall also take advice on this—the terms in the first two or three lines of Clause 105 are standard and are used in other Bills. I recall that form of words from my time at the DSS when we consulted with industry. They came up when we were, as it were, paying for something to be done or that had been done at our request. The phrases, Xas he thinks appropriate", and, Xas he thinks fit", involve a tried and tested formula in legislation and I am not aware of any complaints about the words. That also mirrors the payment arrangements in the Regulation of Investigatory Powers Act, which covers access to communications data.
	It is absolutely crucial that we work with information providers to ensure that the arrangements do not cause British industry to lose out to competition from abroad. We are not seeking to damage British industry in any shape or form in relation to its competitors. That will not satisfy Members of the Committee but it certainly answers the first point.
	The second issue concerns the type of data to be retained. That will be discussed in detail in the consultations on the code of practice. Individual agreements with the service providers will specify exactly which types of data are kept and will ensure that current retention practices are taken into account. There will not be a Xone size fits all" arrangement. Some providers may end up retaining more data than they currently do. We want to take that into account.
	The provisions are flexible enough to distinguish data that are of use to law enforcement and should be kept, and data that are of no interest to national security or the detection of crime. Records of standard operational procedures or the product of the functioning of computer systems, for example, should not be kept because that has nothing to do with the purpose for which the codes allow data to be kept. The provisions apply only to communications data that are already held by providers. We have no intention of asking them to retain data that are not collected in the normal course of their business. They are being asked to do nothing new. I see that the noble Lord is nodding, for which I am grateful.
	The information that I have is that, in relation to our international partners, there have been negotiations on the EU draft communications data protection directive. My notes contain a word that I cannot read, but it starts with, Xcyber"; it could be Xcyber-active forum". Last week, that forum was devoted entirely to data retention. I shall get a translation of the word in due course. There are ongoing European Commission discussions with the United States authorities and the matter arose at the G8 Florence summit two weeks ago. Home Office officials have met counterparts from France and the Netherlands. I now learn that the word I could not read is, Xcyber-crime", and the body is the Xcyber-crime forum". Okay. The writing is much better than mine. I am not making a criticism.
	Last month Home Office officials met counterparts in France, the Netherlands and Sweden to discuss what each country is to do on data retention to meet the 11th September crisis. France has just introduced emergency legislation to retain data for up to one year for law enforcement purposes. I hope that that brief overview answers the noble Lord.
	Amendment No. 176A seeks to ensure that equity is maintained between service providers and that they are not made to bear unreasonable burdens. We are committed to ensuring equity between comparable service providers. If it is necessary to introduce a mandatory scheme—I hope that it will not be—discussions about how equity can be observed will take place during consultation before directions are made.
	Payments are dealt with in Clause 105. The Secretary of State is required to ensure that arrangements are in place to make appropriate contributions to service providers, if he judges that it is right to do so. That mirrors the payment arrangements in the RIPA provisions which cover access to communications data. The second issue concerns the type of data to be retained. That will be discussed during the consultations.
	Amendment No. 176E introduces a test of reasonableness to directions issued under Clause 103. There is a requirement to consult communications providers before issuing directions. That will ensure that they are able to express what they can or cannot reasonably do. The Secretary of State will then need to balance those considerations against what is necessary to safeguard national security and to prevent and to detect crime.
	We are committed to considering what help may be given to service providers that may take the form of capital investment or running costs. We shall work with the service providers on that and, in particular, we shall ensure that that does not cause British industry to lose out to competition from abroad. Noble Lords have raised a crucially important point on which I hope I have satisfied them.

The Earl of Northesk: I am grateful to the Minister for his explanation and comments. The noble Lord, Lord Phillips, may be more optimistic than I, but I concur with his wish and expectation that this part of the Bill will eventually be appropriately constrained, which will render these particular amendments redundant.
	I am also grateful for the comments of my noble friend Lord Goschen. He put the issue with much more clarity than I managed. His point about potential migration via CSPs is well made. The Government should not lose sight of the fact that that could happen as that would damage their ambition to make the UK the best place for e-commerce among the G7 by 2005 and aspirations of that kind.
	I hasten to add that thus far I have tried to avoid muddying the waters of the debate with references to preparation of and negotiation over EC directives. My suspicion is that we have probably successfully confused too many people already without adding that into the matrix. I am particularly grateful for reassurance from the Minister that the requirement for retention of data shall not include anything outside CSPs' normal business practice and use. That is extremely helpful. Tomorrow I shall read carefully in Hansard what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 102, as amended, agreed to.

Lord Geddes: Before calling Amendment No. 173, I must advise the Committee that when that amendment has been disposed of I shall call Amendment No. 173B before Amendment No. 173A, as Amendment No. 173B has been incorrectly marshalled. I must further advise the Committee that if Amendment No. 173 or 173B is agreed to, I shall be unable to call Amendments Nos. 173C to 174 inclusive due to pre-emption.

Clause 103 [Directions about retention of communications data]:

Lord Phillips of Sudbury: moved Amendment No. 173:
	Page 62, line 36, leave out subsection (1) and insert—
	X( ) If, after reviewing the operation of any requirements contained in the code of practice and any agreements under section 102, it appears to the Secretary of State that it is necessary to do so to safeguard against terrorism, he may by order made by statutory instrument authorise the giving of directions under this section for as long as it takes to revise the code in consultation with the communications providers to whom the code will apply or, as the case may be, who will be affected by the revisions, or with the persons appearing to him to represent those providers."

Lord Phillips of Sudbury: The amendment seeks to soften the impact of Clause 103. As the clause stands, if the Minister has compulsorily to act—that is to say that he fails to reach the agreement which we all accept he and the Government will be earnestly seeking—one moves into a position where directions can be given for an initial period of two years. That is renewable ad nauseam.
	We on this side of the House—there are several names attached to the amendment which cover the spectrum—feel that a better solution to the circumstances which give rise to compulsion would be for the compulsion period to end as soon as a satisfactory code has been developed. That is the simple purport of Amendment No. 173. I beg to move.

The Earl of Northesk: It may be convenient to the Committee if I speak to Amendments Nos. 173A, 173B and 174B. I begin by supporting the words of the noble Lord, Lord Phillips. Both Amendments Nos. 173A and 173B offer alternative approaches to the amendment so eloquently explained by the noble Lord.
	Our view is that it is inappropriate that the Secretary of State should have absolute discretion in invoking reserve powers. To that extent, we are of one mind in the conviction that this part of the Bill is in need of improvement.
	I turn to Amendment No. 173A. It seeks to introduce elements again of a proportionality test against which the Secretary of State's giving of directions under the clause can be measured. It is important to realise that it is not unwillingness on the part of business that can make compliance with data retention requests difficult, be they voluntary or mandatory. As the Minister said, the response of communication service providers in the wake of September 11th has been excellent. There are often sound commercial reasons for non-compliance; for example, the data required might be available only on a service that is subject to another jurisdiction. That point was made previously by my noble friend Lord Goschen.
	I hazard a guess that understanding of these kinds of issues is perhaps a little cloudy. Thus, without some form of test and the pro-active involvement of business in the process, it is conceivable, if not likely, that directions emanating from the Secretary of State alone will entrench the ineffectiveness of the code rather than address it. In the context of a mandatory code, that has the potential of being positively harmful to the sector. Amendment No. 173A seeks to address that problem by making business a party to the preparation of any revisions in the code.
	I turn to Amendment No. 183B. That too introduces a threshold test for the reserved powers by obliging the Home Secretary to show that a direction under Clause 103 is necessary and justified for the purposes of the Bill by linking it back—again— to Clause 102(5). That is consistent with the proportionality principle highlighted by the Information Commissioner in her memorandum on the Bill. She stated:
	XThe scope of the powers proposed to be given to the Secretary of State is immensely broad. The lack of any overt safeguards against abuse of such powers indicate a lack of proportionality such as to render the prospective legislation incompatible with Convention rights".
	Amendment No. 147B picks up that thread and applies it equally to any directions that the Secretary of State may issue to communication service providers. As so often with the Bill, the objective is to establish appropriate consistency with the principles of proportionality present in data protection and human rights law and in RIP.

Viscount Goschen: In responding to the amendments, the Minister has an excellent opportunity to reassure the Committee and the industry about what circumstances are in the Government's mind with regard to Clause 103—under what circumstances they would seek to introduce directions by statutory instrument rather than allow the voluntary code of practice to continue.
	We well know that the industry tends to know much more about the business of providing information—the ins and outs of the competitive framework—than do the Government. The industry is a vital part of making this area of the Bill work. If it is compelled to do something, the chance of it co-operating fully will be much less. It is clearly in the Government's interest to reassure the industry that Clause 103 is a reserve power.
	My noble friend Lord Northesk and the noble Lord, Lord Phillips of Sudbury, have provided some more objective tests to be used—some further hurdles to be overcome. The Minister may or may not like the specific tests that they have proposed, but the Committee wants further reassurance on when and how the clause will be invoked. All our discussion on Clause 102 for the past two or three hours has been useless if the Government have it in mind to use Clause 103 at the flip of a switch.

Lord Rooker: I take the point behind the amendments. I can make one commitment that may answer the Committee's suspicion. I cannot read out a list of criteria by which we would decide, if necessary, to switch from a voluntary to a mandatory scheme. However, during consultation on the code of practice, an objective set of criteria to determine its success or failure will be drawn up. I cannot put it better than that. During those discussions, we will draw up with the industry and the Information Commissioner an objective set of criteria to decide at a given time whether the code had been a success or a failure. If it were a failure, that would trigger either further consultation to revise the code or the mandatory route.
	I can entertain the Committee with much repetition of what I said earlier, but my remarks just now go to the central point that is the thrust behind the amendments. We want to be open and objective about measuring the code's success or failure. As I said, that set of criteria will be drawn up during the consultation.

Lord Phillips of Sudbury: That reply is helpful. What if the Minister had to go down the compulsory route and the industry came running to his door, started negotiating seriously and effectively and, after six months, let us say, we had a code with which everybody was satisfied? As I understand it, nothing in the Bill would allow the two-year period to be broken or ended. I wonder whether that is right and sensible.

Lord Rooker: I do not know, but I am happy to consider that in the time available. We want the thing to work. If we can clarify that point, we will. If the voluntary system has failed and we are moving to a statutory system but, following negotiation, there is an agreement to continue a voluntary system, by definition there is no dispute any longer and it does not make sense to ramrod the statutory system. I shall take advice and clarify the process, if I can, because that is in everyone's interest.

Lord Phillips of Sudbury: I thank the Minister for that reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 173B not moved.]

Lord Geddes: Before calling Amendment No. 173A, I must advise the Committee that, if it is agreed to, I cannot call Amendments Nos. 173C to 176 inclusive due to pre-emption.

[Amendments Nos. 173A and 173C not moved.]
	[Amendment No. 173C not moved.]

Lord Geddes: Before calling Amendment No. 173D, I must advise the Committee that if it is agreed to I cannot call Amendment No. 174.

[Amendments Nos. 173 to 174B not moved.]

Lord Phillips of Sudbury: moved Amendment No. 175:
	Page 62, line 43, after Xto" insert Xpublic"

Lord Phillips of Sudbury: I speak for all those named on the amendment. I hope that the Committee will be patient if I deal with it with some care—care partly because it affects an issue which causes consternation outside the Chamber in the industry and care because, frankly, I do not know what I am talking about!
	On that score, I should pay tribute to the great deal of help which we on this side of the Committee have received from the Foundation for Information Policy Research and the Internet Service Providers Association. Both those organisations are steeped in the intricacies of this strange world.
	The point of the little word Xpublic", inserted in Clause 103(2)(a), is that where the Secretary of State gives directions he must give that information and direction to public communications providers generally in order to get away from the personal/private provider as defined by the legislation. It is also to restrict the coercive powers of Clause 103 to public communications providers.
	As drafted, the clause would compel the keeping or retaining of data not just to communications providers under the Bill, sometimes called Internet service providers and telephone companies, but to anyone with a computer utilising software providing any kind of service, commercial or not. That would include a web server, file sharing software, and so-called Xpeer-to-peer" networking. Peer-to-peer networking is not the kind of thing Members of this House do for many hours a day in the many nooks and crannies of this wonderful building, quaffing and talking, although it is the same spelling. Peer-to-peer networking involves computing devices which talk directly to one another without a central computer controlling that communication. Devices used in peer-to-peer communications, which is known in the trade as P2P, can include not only desk-top computers but also PDAs, palm or hand-held computers, corporate workstations or even cell phones. Hooking up computers by P2P connections is a critical step for the future of computing generally. That is the importance of this apparently small amendment.
	For many years, computer users had to dump their information into a central data base before anyone else could use it. But with P2P networking, users can share on a one-to-one basis as data is generated, rather than waiting for central data bases to be updated, therefore allowing for more accurate and time-sensitive decisions. For example, a PC user with the right permissions could check on his co-worker's laptop to see whether a particular file existed. P2P networking is also becoming vital to collaboration between workers and has, I am told and believe, huge potential commercial application. Through direct computer-to-computer collaboration, users can share files easily and message each other as they do so. These functions, which help to duplicate the environment of an in-person meeting, are extremely helpful to companies as workers spread out across the country and the globe.
	For consumers P2P networking is an irreplaceable tool for global knowledge-sharing and media distribution and makes it possible for users to have quick and easy access to entertainment and software cheaply relayed to each other's computers at a price that cannot be matched in the outside world. It also helps users to share information, files and research that they cannot find elsewhere. That is the purpose of inserting Xpublic" in the two places in the Bill. I should be interested to know whether the Government have any objection to these proposals. I beg to move.

The Earl of Northesk: I rise to contribute to the noble Lord's introduction to these amendments and speak to Amendments Nos. 177E, 177F and 177G. The Bill is drafted in such a way as to compel the retention of data by private as well as public networks. The Minister confirmed that point in an earlier debate. Thus it applies to a massive sub-set of computing uses. The noble Lord, Lord Phillips, mentioned peer-to-peer or P2P which is already a well-established medium for data transfer and exchange over the Internet.
	Many—or maybe few—will be aware of the legal action conducted in America against Napster by the recording industry. Whatever the outcome, P2P, whether represented by Napster derivatives or successors such as the systems engineered by the recording industry—I believe that one was announced today—is becoming a benchmark for data transfer of content over the web.
	In terms, therefore, the Bill potentially requires private computers, perhaps even down to the level of the individual user, to log arbitrary data. If it applies at that level and users are required to log traffic and report usage upon government request, not only will it be an unwarranted intrusion upon the individual but it could also severely impair research and development of a number of P2P software applications.
	There are those who believe that P2P and its variants are the future of e-commerce. For example, Andrew Grove, former chairman of Intel Corporation, observed:
	XWeb computing defined the second half of the '90s; peer-to-peer computing will be a significant paradigm"—
	a wonderful word—
	Xof the first half of this decade".
	How does that square with the Government's commitment to e-commerce?
	Amendments Nos. 177E, 177F and 177G are quite technical but no less important for that. Amendment No. 177E seeks to ensure that data generated temporarily during the course of computing operations, which has no separate business use, are not inadvertently caught by the scope of the Bill. I believe that the Minister has already given assurances on the point, so if he chooses not to reply to that amendment I shall probably be satisfied. Amendments Nos. 177F and 177G echo the concerns raised in respect of Amendments Nos. 175 and 176. I have in mind—I may be wrong—that our debates on RIP provoked assurances that the provisions of that Act did not extend to private telecoms networks. Perhaps the Minister can confirm that one way or the other.
	I move to Amendment No. 177G. The particular focus of our debates on RIP was whether its provisions extended to providers of private telecoms networks. This amendment also seeks to address that problem.

Viscount Goschen: It is clear that the noble Lord, Lord Phillips, and my noble friend Lord Northesk have put their fingers on a central problem. I do not envy the Minister's task in defining Xcommunications provider". As my noble friend Lord Northesk said, during debates on RIP we went round in circles for a long time trying to nail down what a communications provider was. It is clear that we all know, more or less, what the Bill should mean. There is a statement that is sufficiently vague for it to come from any Front Bench.
	Clearly, technology is moving extremely fast. We have heard descriptions of systems being envisaged that will not need a central server or computing business to enable communications to pass from one machine to another. We need to define the term Xcommunications provider" and to be clear about what types of service will be included and which will be specifically excluded. For example, would a small office comprising five computers fitted with networking software to enable e-mails to be sent between those machines be termed a communications provider? Members of the Committee know that such a system is not what the Act is aimed at, but the provisions must make it clear where they intend to strike.

Lord Rooker: We are entering the realms of technology and Xnew-speak" that are beyond me. Indeed, in reading out a profoundly complicated statement, the noble Lord, Lord Phillips, admitted that he could not understand the detail. I felt for him.
	I can respond to the amendments briefly, perhaps not to universal satisfaction, but at least to establish consistency, which is important. The definition of communications providers set out in the Bill is and should be consistent with that used in the access to communications data provisions set out in Part I, Chapter II of the Regulation of Investigatory Powers Act 2000. Although the provisions in the Bill and those in the RIP Act will bite in the main where they are intended to do so—namely, on providers who provide a service to the public, such as BT, Orange and Vodafone—we do not wish to rule out the possibility—I put it no more strongly than that—of ensuring that communications data relating to private networks are retained where they might be necessary for national security or crime prevention purposes.
	Earlier I said that we have accepted the case as regards PDVN and university networks, but I am reluctant to cite examples and the reasons why it may be done. That is because the different cases will be explored and will be covered by the code of practice. Details on negotiations will be covered by the code. We shall retain the possibility.
	As regards P2P, which is new to me because I have not yet read about it and thus I am not as up to date as the noble Lord, the directions would need to be appropriate and relevant for the purpose for which the data may be retained under Clause 102(5)—on which we have had a technical disagreement, as it were—that is, to cover national security and the prevention and detection of crime. Directions need to be appropriate and relevant for those purposes.
	Keeping the definition consistent through the different pieces of legislation is probably important for reasons of cross-over. When listening to noble Lords and taking note of the examples given, I can understand why noble Lords might worry that the Government are being oppressive. That is not our intention. By keeping the definitions consistent, we send a signal indicating that the possibility is in place, but that it is not our intention to target private networks. Nevertheless, at some time it may be possible that we would need to do so. I thought that the noble Lord, Lord Phillips, wished to intervene, but he has indicated that he agrees with what I have said. It must be the late hour.
	The noble Earl on the Opposition Front Bench invited me not to reply to one of his amendments because, in effect, I have already responded to the central points. Amendments Nos. 177F and 177G both refer to the definition. In that regard I refer to what I have just said. The central point is that it is not our intention to be oppressive. These matters will have to be discussed during the consultation on the code of practice in order that people will know where they stand. I hope that I have said enough to reassure noble Lords and others outside the House. I appreciate that we do not yet have a code of practice or even a draft.
	As to the comments that this issue has been in the offing for years, I can assure the Committee that the Home Office has now got its skates on.

Lord Phillips of Sudbury: I am grateful to the Minister for those remarks. Although the intricacies are arcane, the principle behind the amendment is understood by one and all.
	If when considering what I said in introducing the amendment the Minister and his officials are of the view that there is substance in it, I would be grateful if the Government could suggest an amendment to cover the position. I am sure that the Minister will accept that important principles such as this need to be right on the face of the Bill. We should not leave everything to codes. For this purpose, I am sure that those who have been assisting me on this side of the House with these technical matters would be very happy to discuss them directly with officials to try to hammer out the truth of the matter. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 176 to 176F not moved.]
	On Question, Whether Clause 103 shall stand part of the Bill?

Lord Phillips of Sudbury: I beg the patience of the Committee at this late hour while I try to draw together the strands of anxiety that have been expressed so far on all the amendments in respect of Clauses 102 and 103. The issues are of the greatest moment and, to be fair, the Minister has made no attempt to pretend otherwise.
	There is a profound disagreement between the Government and the rest of the Committee on the central issue of whether this part of the Bill should be confined—or can be confined—to threats to national security. I would rather put it that way than talk of terrorism. Indeed, that is how it appears in the Bill.
	If the noble Lord, Lord Rooker, is correct in his claim that it is impossible to define the scope of this part of the Bill so that it is confined to threats to national security and any criminal matter potentially related to such a threat, then the anxieties are heightened and intensified. I do not think that it is the case that the wit of man and parliamentary draftsmen cannot rise to this challenge. I was as bold during the course of the debate to suggest a form of words that might serve the purpose.
	It means that, further downstream, when the time comes to access the bulging warehouses of data communications, it will remain impractical—if the Minister is right—to distinguish between a threat to national security and any old crime. In which case, those warehouses can be accessed wholesale under Sections 22 and 23 of the RIPA legislation, not only for the purposes for which this legislation has been brought forward on an emergency timetable but for vastly wider purposes.
	Let us examine what this could mean. First, will data retained under the terms of the Bill, and accessible under the Regulation of Investigatory Powers Act, be accumulated by any agency or any authority in some central or single database? In other words, could data from separate inquiries and investigations for diverse purposes be pooled or accumulated? We assume that that is the case.
	Secondly, is it intended to mark or categorise such data in terms of the purpose for which the data were retained? Will it be possible to distinguish at a later time which data were obtained for what purpose, so that, as the Data Protection Act provides, the data shall not then be used for any incompatible purpose? Again, I must assume that the answer is no. My view is reinforced by the Government's unwillingness to accept the merits of Amendment No. 171.
	Thirdly, will the data be kept by police in databases for intelligence purposes? If that is the case, current Association of Chief Police Officers guidelines mean that the data can be kept indefinitely, subject to a yearly review, even if the people concerned are neither convicted nor suspected of any crime. That illustrates the central difficulty that we have.
	Although the Government rely heavily on the continued applicability of the Data Protection Act, the Information Commissioner has no duty to inspect the databases that will hold the data after they are obtained or to examine the manner in which they are used.
	The Government may say that that responsibility falls to the Interception of Communications Commissioner under the Regulation of Investigatory Powers Act. But that, again, is not so. The Interception of Communications Commissioner has a duty to satisfy himself that traffic data are lawfully obtained, and no more. He has no say over what may be done with the data afterwards, and no mandate or technical capacity to inquire.
	If the Government were to accept the central concern—namely, that this part of the Bill should be restricted to threats to national security and potentially related crime—most of our other concerns would go or would be easily accommodated. On Report, we shall, I fear, have to press this matter to a vote unless there can be some accommodation. We do not accept the fatalism of the Home Office in terms of the inability to confine the scope of the Bill, especially since it chimes with the wishes of NCIS and the other security bodies, as mentioned previously in this debate.
	The distinction that the Minister has constantly made between data attached to communications and content of communications is not as great as he implies. The fact of being able via communications data to draw an accurate, precise profile of not merely a few individuals but thousands of individuals is an immense intrusion into the privacy to which citizens of this land are entitled. The profile will be of anyone's interests, contacts and movements. All that is possible—indeed, with the development of technology, it is fast growing.
	The Minister has repeatedly assured the House that there Xwill not be misuse" and that the legislation will fully respect the Human Rights Act, the Data Protection Act and the Regulation of Investigatory Powers Act. He has said so again and again. Indeed, at one point he was so carried away with this conviction that he banged the desk. Had I a desk to bang, I would bang it back. There are times when scepticism is the right course for this legislative House.
	I do not mean to be in any way disparaging, but I believe that the Minister is being complacent, given the importance of the issues, because not everyone is as palpably decent and honourable as the Ministers and their civil servants. An audit by the police last year found that the national databank contained more than 50,000 sets of fingerprints and DNA material that were there illegally. They may have been put there out of malice, but it is much more likely to have been a cock-up.
	It is a commonplace that access to licensing information, police records and bank records is easily obtained through low-level corruption on the part of those on the inside and on the outside. These are realities and we are foolish to pretend otherwise.
	The greatest prayer handed down to us says,
	XLead us not into temptation".
	If anything is going to lead those with access to such massive hoards of material into temptation, it is the Bill, unless it is constrained more tightly and focused more specifically than at present. Our view is that the greater the risk to civil liberty, the greater must be our vigilance in that cause.
	At the end of all his reassurances, the Minister said that we should not worry because there is always the Interception of Communications Commissioner. I fear that that too is not a satisfactory basis on which to rely. His office is understaffed and under equipped. As his report issued in October this year makes clear, he does not even have the resources to deal with Internet communications. There are no indications of what robust sampling there has been to investigate the vast number of cases involving widely differing types of data that he has to deal with.
	The Home Office will not say when the commissioner will be provided with the promised,
	Xreliable and verifiable technical means",
	to inspect the operation of black boxes. That may sound like mumbo-jumbo, but those of us who sat through the proceedings on the Regulation of Investigatory Powers Bill will remember a great deal of late-night discussion on black boxes, which are the key to this element of communications interception and retention.
	The commissioner does not yet have a promise that he will have available to him those black boxes, which could be under remote control from NTAC, or even whether he will have a searchable database from which he can hope to undertake his task effectively. Last year the Regulation of Investigatory Powers Tribunal, which was an important part of the protection of the citizen under RIPA and which is supposed to safeguard civil liberties, was criticised by the parliamentary watchdog on the grounds that it did not have sufficient secretariat to enable it even to open the mail, let alone process and investigate complaints.
	I fear that it is a commonplace that some of the reassurances that Ministers honestly give on legislation such as this are undermined by a simple failure of manpower and quality of manpower and other resources. We are unconvinced that the huge extra powers and the massive collection and retention of information that these two clauses will enable have been satisfactorily safeguarded.
	Compulsion would be acceptable if the scope of the measure was satisfactorily confined, but without that confinement it is plainly disproportionate in its scope. Unless it is amended, we will not be satisfied. The compulsory state mass surveillance made possible by these two clauses can be justifiable only on that basis.

The Earl of Northesk: I support the noble Lord, Lord Phillips. I do not propose to repeat all the arguments that I advanced at Second Reading, especially at this time of night. It is enough to say that I sought to demonstrate then how a mandatory data retention scheme fails four tests: necessity, effectiveness, proportionality and consequence. I acknowledge that the Minister has worked tirelessly over the past few hours to persuade the Committee otherwise, and I pay tribute to him for that, but I remain unconvinced.
	I merely emphasise two points. First, there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities on 11th September. Despite ample opportunity throughout the Committee stage, the Minister has not challenged that view.
	The reality is that communications providers, within the terms of the existing legislation, already routinely hold data for several months or years. To confirm that point, one need look only at how mobile telephone data are retained and the maximum period that mobile telephone companies are prepared to admit that they retain such data.
	That being so, the Government have an obligation to make a stronger case for changing the status quo to the extent of seeking reserve powers for a mandatory scheme. The Information Commissioner implied in her draft memorandum on the Bill that it was inappropriate for such an important area of public policy to be determined in a rushed way.
	Mandatory data retention, both of itself and more widely, runs counter to government policy. On three separate occasions in the past year, Ministers gave assurances that there were no plans to introduce such a proposal. For example, in their joint letter of 28th January to the Independent, Charles Clarke and Patricia Hewitt stated:
	XWe have no plans to introduce legislation mandating the retention of such data",
	but that is precisely the proposal contained in Clause 103. More widely, it should be understood that a mandatory data retention scheme is wholly antipathetic to the Government's ambitions to make the UK the best place in the world for e-commerce.
	The noble Lord, Lord Phillips, said rightly that a mandatory scheme might be tolerable if it were adequately constrained in terms of scope. I am entirely happy to agree with that, but the mandatory scheme, as it is currently constructed in the Bill, is a step too far.

Viscount Goschen: I shall be brief as we have discussed these issues a number of times this evening. The Government are asking a lot in asking Parliament to accept Clauses 102 and 103. The noble Lord, Lord Phillips of Sudbury, and my noble friend Lord Northesk on the Front Bench have highlighted the principal issues.
	The central point seems to be that the Government are picking a fight unnecessarily. No Member of the Committee has argued that the Government should not have a means of securing the retention of communications data to combat terrorism. No one has argued against that. The problem arises because the Government and the Home Office are being greedy in asking too much for things that go far beyond the principal aim of combating terrorism. There are a number of other constraints on the direction of the compulsory scheme about which we are concerned. There is an opportunity for the Government to narrow down their focus. If they did that and acceded to the points that have been made this evening, they would lose none of their ability to combat terrorism and they would secure the agreement of the Committee.

Lord Rooker: Although I should not say this, during the course of the debate I have been the model of a listening Minister. However, I have just listened to some incredibly extravagant language which is frightening to people outside the Chamber. To talk about the Government conducting mass surveillance is preposterous. Let us get the matter clear. I invite the Committee to admit that the general public are not affected by this legislation. The general public have nothing whatever to fear. To talk about mass surveillance of thousands and thousands of people on the part of the Government, as Members of the Committee have just said, is extravagant in the extreme.

Lord Phillips of Sudbury: May I?

Lord Rooker: I shall give way to the noble Lord in a moment. He had long enough on his feet if I may say so.
	It is also a fact that mobile phone providers do not admit everything. Mobile phone providers do not admit that a mobile phone is a human tracking device. They do not talk about the matter in that way and mobile phones are never deployed in that way, but that is what they are effectively. Let us not beat about the bush. The Government do not seek to invent that phenomenon, but it is a part of the technology.
	As I say, the general public are not affected by this legislation. I deny the case that some Members of the Committee have made in that respect. The Interception Commissioner will not have the relevant power in relation to data retention until Chapter II of Part I of the RIP Act is implemented next year. Therefore, he has not carried out any sampling. Black boxes and e-mail concern the content of communications data which this Bill is not about. Members of the Committee who constantly raise those issues are trying to send out a subliminal message that we are attempting to do something which we are patently not; that is, retain the content of communications. We are not in that business at all. I have received advice on this matter as important points have been raised and allegations made. The tribunal's staff has been increased and I understand that the backlog of cases which grew last year, and which is unacceptable in a public authority, has now been eliminated.
	There will be no warehousing of data stored by communications service providers. Each individual request for access to data has to be justified. To talk—as Members of the Committee have done—of mass trawls of thousands of people is not on. That is not what this legislation is about. It is not what the code of practice will cover. We must be more moderate and realistic as regards what is on the face of the Bill as opposed to what people think is on the face of the Bill or what the media may say is on it.
	The notice to obtain access to retained data must specify the conduct that is allowed and the purpose for which the access is required. Therefore, there cannot be mass surveillance in the way that some Members of the Committee have suggested. Having got that off my chest, I shall be happy to give way to the noble Lord, Lord Phillips, but there are one or two areas where I have indicated that we can meet legitimate concerns, particularly as regards some of the issues raised in previous amendments. We shall seek to do so even in the short time available. Much of that, of course, depends on goodwill in putting together the voluntary code of practice. I do not suggest that there is any bad will on anyone's part, least of all that of industry or the Committee. There is certainly no bad will on the Government's part.
	All the indications are that we can arrive at a successful conclusion to the matter but we must bear in mind what the Bill is about. The language that has been used in what were effectively Second Reading speeches on the two clauses we are discussing gives a misleading impression of the content of the clauses and the purpose for which we intend to use them. However, as I say, where we can meet legitimate concerns—we have tried to listen to concerns over the five days of discussion on the Bill—even in the short time that is available we shall do what we can to seek to accommodate the Committee.

Lord Thomas of Gresford: I have not so far intervened in the discussion on this section of the Bill but the heat generated by the Minister has drawn me to my feet. I think the starting point has to be Article 8 of the convention stating a right to privacy and this legislation requiring the retention of data so as to make them available for investigative authorities, which is a derogation from that right to privacy. From what he was saying, I am not sure that the Minister entirely appreciates that.

Lord Rooker: Perhaps I may—

Lord Thomas of Gresford: Perhaps I may finish, then the noble Lord can have his say. This is the first time that I have expressed myself on this matter.
	I have had experience of the way in which tracking happens through mobile phones. I know that it is a very valuable tool in criminal investigations. For example, if a murder takes place, the police investigators see whether a starburst of communications has occurred on the mobile phone of a person who is a suspect. Very often, within 10 or 15 minutes of an incident such as that, it is possible to see that a suspect has contacted half a dozen people. Those people are potential witnesses whom the police can investigate. That is one way in which it is used.
	Another way in which, in my experience, it is used is to show where a suspect was at a given time. A mobile phone operates in such a way that it must connect with a particular mast. Therefore, it is possible to demonstrate that when the defendant or suspect says that he was in place A, he was in place B or C. I recall one case, for example, in which a suspect was driving up the motorway from London to a northern town. Contrary to his account of what had happened, it was possible to demonstrate—he had admitted that he had his mobile phone with him—that at the time when various things were happening he was in this place and that place and so on. It was possible to track him the whole way up the motorway.
	The significance of that is that the investigative authorities—the police or the security services—can at any time gain access to the records held by a communications server and say, XWe are investigating a particular matter". They can then pinpoint the location of any individual who holds a mobile phone, for example. Therefore, when the noble Lord says that this measure does not apply to the general public, it does in fact apply to anyone who happens to hold a mobile phone. It is possible to tell where a person was at any time in the United Kingdom and possibly, although I am not certain, abroad. Therefore, the entire public are subject to such surveillance if the investigating authorities wish to take that surveillance on board.
	Therefore, I cannot accept, in however heated a manner the Minister expresses it, that this matter affects only Xcriminals". It can affect any member of the public. Not only that—I am dealing only with mobile phones—but there are other means of communication held by servers to which the investigating authorities can demand access and from which they can ascertain where, when and to whom an e-mail was sent. From what the Minister said when he resisted the amendment which sought to add the word Xpublic" to the Bill, it seems that the PDVN within the Houses of Parliament can hold on to the records of my e-mails. From those, the investigating authorities can see my connections with Al'Qaeda or my private or business connections. They can gain access to all the information that I have sent through e-mail. Those records will be kept and it will be possible to investigate them in due course.
	There is a case to be made for the Minister's proposals but for the purposes of the Bill, the measure should be confined to anti-terrorism. If it is to extend beyond that, the proposals should be put before the public for a long debate to which everyone can contribute and for soundings to be taken. That point was made by my noble friend Lord Phillips of Sudbury in opposing Clauses 102 and 103.
	I reject the Minister's argument that the Bill does not cover surveillance of the whole public. It potentially provides for surveillance of every member of the community who uses a mobile telephone or e-mail. Let us face up to that. Is such a measure in the public interest at this moment? Is it in the public interest for it to be debated in the confines of rushed anti-terrorism legislation?.
	Make no mistake, the Bill widens the powers of the investigating authorities in an unprecedented way.

Lord Phillips of Sudbury: I am grateful for the Minister's response, which included some extremely warm expression of opinion. I do not resent that but I challenge the Minister to re-examine Section 22 of RIPA in relation to the debate on Amendment No. 171. I believe that he will be advised that unless there is some curtailment of the basis upon which information can be disclosed and obtained under the Bill, it will be open to a number of authorities—particularly the police and security organisations—to access a wide range of information, way beyond anything to do with terrorism or related crime.
	Section 22 of RIPA deals with national security, prevention or detection of crime, prevention of disorder, the United Kingdom's economic well being, public health and safety, health, taxes, duties and preventing injury or damage to property. The way that the Bill is constructed, information that is collected and retained either voluntarily under Clause 102 or compulsorily under Clause 103 will be accessible for much wider purposes than those for which it was obtained. By rejecting Amendment No. 171, the Minister rejected his own argument just now.
	The Minister said that the black boxes to which I made reference do not carry communications data—only communications that are beyond the remit of the clauses. The Minister is flat wrong. I hope that he will take advice and reconsider. The Minister said also, perhaps with the greatest warmth, that the public are not affected. That is not remotely true. The information that is to be retained under Clause 102, and potentially compulsorily under Clause 103, will affect possibly millions of citizens. I urge the Minister to study the wording of Section 103(2):
	XWhere any order under this section is in force,"—
	that is, a compulsory order where the voluntary code has broken down—
	Xthe Secretary of State may give such directions as he considers appropriate about the retention of communications data . . . to communications providers generally".
	There is no control over the Secretary of State's exercise of that discretion or any definitional limit on the data he can ask to be retained. The Secretary of State can ask the entire industry to engage in such a retention. For the Minister to say that the public are not affected, when the information will be only about the public, is not true. I hope that the Minister will, on reflection, agree. It was for those reasons that I talked about mass surveillance and I do not withdraw that phrase. I hope that we can reach an accommodation. What the Minister and ourselves are concerned about is the same thing. But at the moment he is under a misapprehension as to what his own Bill is capable of doing.

Lord Rooker: I do not dissent for one moment. The noble Lord, Lord Thomas of Gresford, added to previous extravagant claims. He may have put it in silken tones but he made out that the Government are hell-bent on mass surveillance of the British public. That is the thrust of what noble Lords have said. I absolutely and flatly deny that. We have no such intention. Millions have now been mentioned. It gets worse each time the noble Lord stands up. Several times I made it absolutely clear that the code of practice will conform to all necessary legislative safeguards, including—and I mentioned this twice—Article 8 of the European Convention on Human Rights. I specifically put that on the record.
	If I am not believed, fine, but that is the point I made. It is the Government's intention to operate within Article 8, the Data Protection Act and all other safeguards in human rights legislation. I flatly deny that we are derogating from Article 8 of the European Convention on Human Rights. I made that point at least three times.
	On the black boxes, if I am wrong, I shall take advice. The point, however, was that that related to communications. I repeat again, we are not interested in retaining communications data. I have made that clear several times yet noble Lords still refer to this in passing. We have no interest in retaining that data. Some people may be interested to have it, but the Government do not want it. However often I deny this, it is clear I am not making a satisfactory case for noble Lords opposite.
	Where we can meet legitimate points for clarification, both on negotiations for the code and on the Bill, we shall genuinely seek to do so. I accept that time is short but there should be some way for both Houses of Parliament to look at the totality of operation of the Bill when it is enacted.
	There are millions of mobile phone users. They carry a human tracking device. The phone companies do not say that, but that is the reality. A lot more can be discovered from both the phone and the components within it. I do not propose to go into details about that. But let me repeat, we are not embarking in this Bill on mass surveillance of the British public. Whatever noble Lords may say, I shall rise each time and make that point.

Lord Thomas of Gresford: Perhaps I may say in reply to the Minister that no one is attacking the good faith and intentions of the Government. We are not suggesting that mass surveillance is about to take place. What we object to is the powers given to government; not this Government but to any government. There are two points: how long will this legislation last—the sunset clause argument. Had I been sitting on those Red Benches in 1912 as part of a Liberal government pushing through emergency legislation called the Official Secrets Act, I might have spoken with the same passion as the noble Lord. I would have said, XThe legislation is only short term and deals with an immediate situation". In fact, it lasted until it became totally discredited and gave far too much power to subsequent governments.
	It is not the good faith of the Minister that is in question and there is no allegation that he is about to embark on mass surveillance. We question the handing of powers of considerable potential to the executive; those of us on this side of the House will always resist that.

Clause 103 agreed to.
	Clause 104 [Lapsing of powers in section 103]:
	[Amendments No. 176G and 177 not moved.]

The Earl of Northesk: moved Amendment No. 177A:
	Page 63, line 34, leave out subsection (4) and insert—
	X( ) It shall be the duty of the Secretary of State to receive quotations from businesses on the costs of complying with the data retention provisions of this Act and the code of practice, and to ensure subsequently that the appropriate payments in relation to capital and operational costs are made to communications providers."

The Earl of Northesk: In moving this amendment, I shall speak also to Amendment No. 177C.
	I say at once that I welcome the Government's acceptance that communications providers should be compensated for complying with the proposed data retention regime. Unfortunately, the Bill's formula could be open to arbitrary decisions. The amendment therefore seeks to ensure that the Government obtain quotations from businesses about the costs involved in complying with the Bill's provisions and that payment is made to capital and operational investments. In seeking a system of data retention, the amendment recognises that there is a risk that the Government will unintentionally place UK communications providers at a disadvantage vis-a-vis their international counterparts. As has already been mentioned, the Government should not underestimate the possibility that communications service providers will seek to relocate their infrastructure in less onerous regulatory regimes. That is a very real prospect, and more so if the industry infers that the compensatory package is in any way unreasonable or overly burdensome.
	Amendment No. 177C offers an alternative approach. Indeed, in that it more closely mirrors the wording in Section 24(1) of the RIP Act, it may—I doubt it—find more favour with the Minister. After all—dare I say it—there is something to be said for consistency. I beg to move.

Lord Rooker: I was rather looking forward to a debate on one of the amendments that was not moved. It is unfair—

Lord Goldsmith: Oh!

Lord Rooker: I am not trying to cause problems for my noble and learned friend. I wanted to discuss one of those amendments because it related to the fact that in 1911—was that the date?—there was no sunset clause in the Official Secrets Act. We have just passed over the little sunset clause in these provisions. There is a mechanism for returning to the matters. I am sure that Members of the Committee have taken that on board.
	On the amendments, I have in some ways covered a couple of the points in previous debates but it may help those who are following our proceedings to put those points on the record. We are committed to giving what help we can to service providers, which might take the form of capital investment or running costs. We will work with service providers on that. I repeat that we want to ensure that there is no possibility of that damaging the competitiveness of British industry with its overseas competitors.
	As I have said, the wording in Clause 105 is consistent, so far as I am aware—I have not been contradicted yet—with the RIP Act. I recall that similar words were used in our arrangements at the DSS, when we dealt with industry's access to information relating to the Social Security Fraud Act. That legislation began in your Lordships' House and there were great debates on it before it came to the Commons. I was grateful to noble Lords for their scrutiny of it.
	Amendment No. 177C would require the Secretary of State to ensure that fair contributions were made towards any costs that were incurred by service providers. Such costs would not be limited to those incurred as a result of the Bill's provisions.
	Furthermore, it removes the Secretary of State's responsibility to ensure that any contributions paid are appropriate. I am sure that the Comptroller and Auditor General will have something to say about such a wide statutory provision. Indeed the Public Accounts Committee will probably be in more uproar than the Human Rights Joint Committee is in relation to this Bill.
	The existing provisions are and should be consistent with those in the Regulation of Investigatory Powers Act. In the light of that, I hope that the noble Lord will not press the amendment. We seek a genuine arrangement of consensus with industry. We realise that there will be greater burdens on some providers than on others. Therefore, we want to meet the special needs of different providers in the best way that we can.

The Earl of Northesk: Perhaps I should apologise to the Minister for not moving amendments. I had thought that he would be grateful. I am grateful for the comments that the Minister has made. I shall reflect upon them when I read them in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Northesk: moved Amendment No. 177B:
	Page 63, line 41, at end insert—
	X( ) Section 65 of the Regulation of Investigatory Powers Act 2000 (c. 23) (the Tribunal) is amended as follows.
	( ) In subsection (5), after paragraph (f) insert—
	X(g) the making of any request for the retention or disclosure of communications data in pursuance of any code of practice issued or agreement entered into under section 102 of the Anti-terrorism, Crime and Security Act 2001 and the making of any direction pursuant to section 103 of that Act."
	( ) In subsection (8), after paragraph (f) insert—
	X(g) a code of practice or agreement made under section 102 of the Anti-terrorism Crime and Security Act 2001, or a direction made under section 103 of that Act.""

The Earl of Northesk: Bearing in mind the hour, I shall be brief. Communications service providers and individuals should have an appeals procedure against requests for the retention of data or directions issued under the Bill. That is our belief. That would provide the independent scrutiny of such requests that is an essential part of Article 8 of the ECHR and would make for better overall accountability. An appropriate body for such appeals would be the tribunal set up under RIPA. Among other things, that considers complaints from persons aggrieved by certain conduct under RIPA, including conduct in relation to obtaining or requiring the disclosure of communications data. Section 65 of RIPA confers on the tribunal jurisdiction to hear those complaints. Therefore, the amendment seeks to extend the jurisdiction of the tribunal to the hearing of appeals against data retention requests and directions made under this Bill. I beg to move.

Lord Rooker: I too shall be brief. The provisions on data retention in this Bill are not—I repeat not—investigatory powers. Therefore, we believe that they should remain outside the scope of the tribunal that deals with investigatory powers.
	The code of practice and agreements are voluntary. There should be no need for a complaints mechanism for a voluntary regime. Before making directions, the Secretary of State is required, under the Bill, to consult with those to whom the directions will apply. Service providers are also free to apply for judicial review of the Secretary of State's decision to make directions. I kept a straight face and did not change my tone of voice while reading that. We are not opposed to judicial review; we are not opposed to scrutiny. In some areas we do not believe that it is necessary because we have a good mechanism in place anyway. I say that in case anyone is contemplating returning to Part 4 debates. Nevertheless, in this area service providers are annoyed about any decision directly from the Secretary of State. Judicial review would be open to them. With that on the record, I hope that the noble Lord will be satisfied and that he will withdraw his amendment.

The Earl of Northesk: I am grateful for the comments made by the Minister. I have one observation. I am bound to contemplate what the position would be vis-a-vis appeals in the event that the Secretary of State ever felt it necessary to impose a mandatory code of practice. I shall reflect on that overnight and I shall reflect on the comments made by the noble Lord when I read Hansard tomorrow. In the mean time, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 104 agreed to.
	Clause 105 [Arrangements for payments]:
	[Amendment No. 177C not moved.]
	Clause 105 agreed to.
	[Amendment No. 177D not moved.]
	Clause 106 [Interpretation of Part 11]:
	[Amendments Nos. 177E to 177H not moved.]
	Clause 106 agreed to.
	[Amendment No. 177HA not moved.]
	Clause 107 [Bribery and corruption: foreign officers etc.]:
	[Amendment No. 177J not moved.]

Baroness Whitaker: moved Amendment No. 178:
	Page 65, line 10, after XKingdom)" insert Xand in particular such authorities having legislative, administrative, or judicial functions, or exercising a public function for that country or territory (including public agencies or public enterprises) and public international organisations"

Baroness Whitaker: I declare an interest as a member of Transparency International UK's Advisory Council. Amendment No. 178 seeks to make clear beyond doubt who is covered by the words Xpublic body". The aim of this part of the Bill is to make it certain that bribing a foreign public official is a crime in compliance with the OECD Convention. It is a splendid advance in the fight against international terrorism as well as supporting international good governance.
	But the reality of the most damaging kinds of large-scale bribery is that the bribed party may well not be a public official in the sense of the 1889 and the 1916 British law definitions which Clause 107(4) invoke. He or she may be a member of the legislature, an officer of a newly privatised utility, a judge or an officer of one of the international organisations based in the country concerned.
	That is why the OECD Convention defines a Xforeign public official" in words very close to the amendment. I ask, therefore, how can my noble and learned friend the Attorney-General be confident that the text of the Bill as drafted complies with the OECD Convention? I beg to move.

Lord Roper: I must also declare an interest as a member of the British section of Transparency International. I rise briefly to support the amendment of the noble Baroness, Lady Whitaker. It is important that this matter is clarified, if not on the face on the Bill at least by a clear assurance by the Attorney-General on the point.
	The public service in various parts of the world is not necessarily as well developed as it is in this country. Therefore, the risks described by the noble Baroness are very real ones. The Committee wants this matter to be made perfectly clear, if not on the face of the Bill, in terms of the assurance which I hope the Attorney-General will be able to give us.

Lord Goldsmith: I am grateful both to my noble friend Lady Whitaker and to the noble Lord, Lord Roper, for raising the issue. The definition which is provided by Clause 107(4) is wide. I draw attention to the words. It states that by amendment to the 1916 Act,
	Xpublic body includes local and public authorities of all descriptions".
	Added to those words would be,
	Xincluding authorities existing in a country or territory outside the United Kingdom".
	My view is that having made clear that the law covers authorities Xof all descriptions"—I emphasise those words—it is unnecessary, and possibly confusing, to add that it covers some types of authority Xin particular", as my noble friend's amendment proposes. Our courts are familiar with what is meant by Xpublic authority". It is a term which is not infrequently used in legislation. In other legislation, for example the Human Rights Act, we have avoided using any definition of Xpublic authority". There could be dangers in unnecessarily departing from those established precedents.
	As amended, the 1889 Act—read with the 1916 Act that amends it—will have a wide reach. But even so, we will not be wholly reliant on it to meet the requirements of the OECD convention. We still have the common law crime of bribery, which, according to its standard formulation in Russell on Crime, covers:
	Xthe receiving or offering—
	of—
	Xany undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity."
	That common law crime applies to persons who carry out functions which have nothing to do with the UK and carry out those activities outside the United Kingdom. That again is a wide formulation that is not tied to any particular form of authority. I hope that that gives additional assurance.
	It is right also to bear in mind that the 1906 Act also provides an offence applicable to any person who is an Xagent", which is defined as
	Xany person employed by or acting for another".
	Again, that can arise in both the private and the public sector. That provides an additional safeguard to ensure that the Bill achieves the wide cover intended. For those reasons, the Government are satisfied that the Bill as drafted covers all the categories of public official that the OECD convention requires to be covered.
	To repeat what my noble friend Lord Rooker said at Second Reading, the Government remain convinced that the law of corruption is in need of wider reform. The existing offences are something of a patchwork. It is our intention to replace them by a single offence as part of a general reform of corruption law. That will be carried out as soon as parliamentary time permits.
	In those circumstances, I hope that my noble friend will feel that that assurance is satisfactory to meet her concerns, and that she will not feel that she must press the amendment.

Baroness Whitaker: I thank my noble and learned friend the Attorney-General. I am sure that the Government will consult the OECD's evaluation mechanism to assure themselves that they are in compliance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 107 agreed to.
	Clause 108 [Bribery and corruption committed outside the UK]:
	[Amendment No. 179 had been withdrawn from the Marshalled List.]
	[Amendments Nos. 180 to 183 not moved.]
	Clause 108 agreed to.

Lord Dixon-Smith: moved Amendment No. 184:
	After Clause 108, insert the following new clause—
	XSECTION 107 OR 108 OFFENCES
	(1) No prosecution for an offence under section 107 or 108 shall be instituted except by, or with the consent of, the Attorney General.
	(2) The Secretary of State shall lay before both Houses of Parliament at least once every twelve months a report on any prosecutions arising under section 107 or 108."

Lord Dixon-Smith: The reasoning behind the amendment lies in the brutal reality that the intention behind Clauses 107 and 108 is entirely good and ought to be supported. As has been pointed out, the OECD wants adoption of such measures by all of its members. If a country such as the UK is not playing a leading part in that, we cannot hold our heads high.
	We must consider the words of the clauses and what happens in the world. Clause 107 states:
	XFor the purposes of any common law offence of bribery it is immaterial if the functions of the person who receives or is offered a reward have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom".
	Clause 108 begins by stating:
	XThis section applies if . . . a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United kingdom, and . . . the act would, if done in the United Kingdom, constitute a corruption offence . . . In such a case . . . the act constitutes the offence concerned, and ... proceedings for the offence may be taken in the United Kingdom".
	All of that is straightforward.
	However, one needs to think a little about it. Let us consider, say, a hydro-electric dam in the back country of one of the many remoter nations of the world. A small part in the electric generation equipment packs up and the power of the dam to continue generating is endangered. Let us say that the part was British equipment and the British agent immediately sent for the spare part which may have a low value. Let us assume that when the telegraph comes to this country the spare part is loaded up and packed on a plane. It flies off, arrives at an airport in the third-world country and the part disappears into a warehouse at the airport. As a matter of normal practice, it is unlikely to emerge without the payment of a small sum of money to facilitate the speed of passage.
	That could lead to an offence of bribery in this country. One might say that in absolute terms that is correct. However, if such cases happened to every firm in this country which traded internationally, the British courts would be overburdened with many, in one sense, trivial matters. However, in another sense, they are significant trading matters because if one cannot supply such parts quickly—if hydro-electric power stations were unable to run for the want of a nail, as the saying goes—they rapidly damage the trading reputation of this country.
	The purpose of Amendment No. 184, therefore, was not to do anything to stop the possibility of such cases. However, if we invited the noble and learned Lord the Attorney-General to consider whether the case was in the best interests of the nation as a whole it might prevent some of the de minimis cases being brought. Let us suppose, for example, that we are asked to provide a new hydro-electric generating station worth hundreds of millions of pounds and in order to facilitate that contract a considerable sum of money were passed. It might then be deemed to be proper that a case should be brought.
	Bearing in mind the distinction between those two levels of corruption, both of which in principle are the same but in impact are dramatically different, we thought it was worth while tabling a clause of this nature. We want to provide a limited check which we hope will prevent the bringing of many small cases with which no one could quarrel in principle but in practice would not do anyone a great deal of good. I beg to move.

Lord Monson: I would not like it to be thought that the addition of my name almost exclusively to these amendments indicates that I consider Part 12 to be the most important part of the Bill. Most emphatically that is not the case. The problem is that the Bill has been rushed through so rapidly that it is difficult for a mere Back-Bencher to keep pace with it.
	At Second Reading, the noble Lord, Lord Goodhart, speaking from the Liberal Democrat Front Bench, said that:
	XWhat the Government have done with the Bill is to use 11th September to resurrect bits and pieces of legislation which have little or nothing to do with terrorism and tack them on to what is supposed to be an emergency Bill".
	Rather illogically, he went on to say in relation to Part 12:
	XAlthough we agree that it is technically out of place in an emergency Bill it does not require much further debate and is unlikely to take up much time".—[Official Report, 27/11/01; col. 268.]
	Even if that is true—I dispute it to some extent—I cannot agree that this justifies rushing through the changes under the umbrella of anti-terrorism legislation.
	It used to be generally agreed that extraterritorial jurisdiction is inherently undesirable and should be confined to such serious offences as murder, torture, war crimes and, more recently, paedophile offences against small children. I do not believe that in general corruption comes remotely into that league. As the noble Lord, Lord Dixon-Smith, pointed out, the problem is that there are no de minimis provisions in the clauses as they stand.
	I was about to cite a scenario almost identical to that referred to by the noble Lord. Perhaps he has borrowed something from me. But is it right that a British civil engineer, such as the one cited by the noble Lord, who distributes the equivalent of a few fivers or tenners to secure clearance of vitally needed equipment from a Customs shed, should be subjected to the full rigours of extraterritorial jurisdiction?
	If these provisions are to be approved they should be confined to cases involving really large amounts of money—thousands or tens of thousands of pounds—not two or three-digit sums. Exceptions to Amendment No. 184, in conjunction with Amendment No. 183, which the noble Lord saw fit not to move but which I believe is a very good one, would go a long way to prevent a legislative sledgehammer being misused to crack a tiny nut.

Lord Thomas of Gresford: In the spirit of inquiry only, I should be grateful if the noble and learned Lord can tell the Committee whether his consent is required for any of the prevention of corruption legislation. If so, why is there a distinction in this particular provision?

Lord Goldsmith: The answer is that there are already two statutory schemes under the 1899 Act, as amended by the 1916 Act and the 1906 Act. Both require the consent of the Attorney-General. That is also what will happen under Clauses 107 and 108, because they operate in effect by way of amending those Acts or treating certain matters as falling within them. Therefore, the Government agree with what they take to be the spirit of the first part of the amendment moved by the noble Lord, Lord Dixon-Smith; namely, that a Law Officer's consent should be required. In saying that I do not intend either to bind myself or any successor as to any particular application of the consent. The fact I say that does not mean that the examples he gives are necessarily the way in which Law Officers' consent would apply. I am sure the noble Lord understands why I say that. It is right, therefore, that there is no need to put in that part of the amendment to deal with the basic offences.
	For the sake of completeness, I should point out that there is a small anomaly. There is also the common law offence to which I referred earlier that could arise in certain circumstances. That does not require the consent of a Law Officer because common law offences do not require it. It arises as a matter of statute. However, at least in cases where a common law offence is being brought to avoid one of the issues in the statutory offence—which is that there is a presumption that may not be thought to be appropriate—it is the practice of the Crown Prosecution Service to ensure that they are brought to the attention of the Law Officers.
	As Attorney-General I always have power to stop any prosecution, whether or not I have a statutory power of consent, by way of nolle prosequi. In practical terms even in that case it is possible. The Government do not believe that it would be appropriate to try to deal with that anomaly in this Bill, but when there is a more widescale reform of the corruption law, to which I referred earlier—the intention is to have a single offence of corruption which would sweep all this together—the Government believe that it should remain subject to consent by Law Officers. I hope that that meets the first part of what was said by the noble Lord, Lord Dixon-Smith.
	Before turning to the second part, perhaps I may say to the noble Lord, Lord Monson, that I hope to assist him in the consideration of his concerns over rushing through changes. The changes here were well considered before the Law Commission report and the White Paper produced in mid-2000, which signalled the changes so far as their appearance in this Bill is concerned. That was made clear in another place. The Front Benches of the two main parties were invited to consider in effect the inclusion of this part in the Bill. Cross-party support has been expressed for this part of the Bill and I understand that the position is that neither side has any difficulty over it remaining. I hope that that is of some assistance to the noble Lord.
	Perhaps I may turn to the second part of the new clause. The noble Lord, Lord Dixon-Smith, did not address any particular comments to it, but I shall let him know what the Government's position would be. We do not think that an annual report to Parliament would be justified. The total number of persons proceeded against under the Acts in the year 2000 was some 17, which is a relatively modest number. Some idea of the additional number who might be proceeded against as a result of the Bill could be gauged from what has been the experience of the United States. It has proceeded against only two or three cases of overseas bribery per year. One can draw from that what conclusions one will. In any event, the Government's view is that a reporting requirement, given the small number of cases envisaged, is not justified. For that reason, we would not accept that part of the new clause.
	I hope that overall my remarks have been sufficient to persuade the noble Lord to withdraw his amendment.

Lord Dixon-Smith: I am grateful to the noble and learned Lord the Attorney-General for his explanation. His assurances will apply not only to myself but equally and as beneficially to those who have prompted me to table the amendment.
	I am grateful to the noble Lord, Lord Monson, for his support. Of course the noble Lord has supported a proposition which we have been arguing throughout our deliberations on the Bill; that is, the question of putting elements into the legislation that really have no business to be there. However, as the noble and learned Lord has said, it is a fact that the Front Benches of another place were agreed that this should be included in the legislation. That was why I did not mention that particular piece of the background.

Lord Goldsmith: I thank the noble Lord for giving way. Would he be kind enough to confirm, as I believe it to be the case, that the Front Benches in this House were also involved in those discussions?

Lord Dixon-Smith: I can speak only for my own part. I was made aware of the discussions after they had taken place. Be that as it may, I am absolutely satisfied with the outcome. Equally, I am satisfied with the explanation offered by the noble and learned Lord regarding the lack of need for an annual report. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 109 agreed to.
	Clauses 121 and 122 agreed to.
	Schedule 8 agreed to.
	Clause 123 agreed to.
	Clause 124 [Commencement]:
	[Amendment No. 184A not moved.]
	Clause 124 agreed to.

Lord Dixon-Smith: moved Amendment No. 185:
	After Clause 124, insert the following new clause—
	XCOMMENCEMENT OF PART 5
	Part 5 of this Act shall not come into force until the Secretary of State has conducted a consultation exercise on its provisions with the following bodies, and placed a copy of their responses in the Libraries of the two Houses of Parliament—
	(a) The Law Society,
	(b) The Bar Association,
	(c) The Justices' Clerks,
	(d) The Districts Judges (Magistrates' Courts),
	(e) The Lay Magistracy, and
	(f) The Crown Court Judges."

Lord Dixon-Smith: The amendment refers to Part 5 of the Bill, which deals with race and religion. It always seems to me to be gloriously inconsistent to propose amendments to a part of the Bill that one would prefer not to see in the legislation in the first place. However, we believe that it is worth while bringing forward this amendment because of the acute difficulty of a possible conflict between freedom of speech and the possibility that that may verge on or merge into incitement.
	The amendment seeks to ensure that before Part 5 of the Bill—if Part 5 survives—is implemented, there shall be the widest possible consultation with, particularly, those bodies of the law which would have to face the difficulties in court of dealing with the consequences of what we had agreed. That is the very simple purpose of the amendment.
	The amendment does not specify that the consultation has to be agreed to or anything else; it simply says that there should be consultation and the results placed in the Libraries of the two Houses. It is a simple requirement which could reasonably be complied with. It may well be that the consultation will take place anyway without any need for the amendment. If that happens to be the case, no one will be more delighted than I. I beg to move.

Lord Monson: I could speak for 10 or more minutes on this amendment and Part 5 of the Bill generally, but I would not be popular with the Committee if I were to do so at this time of day—or, indeed, at any other time of day.
	Perhaps I may draw the Committee's attention to a fact which, as far as I am aware, was not raised either at Second Reading or during the first day in Committee when Part 5 was largely dealt with. It has been an offence since 1987 in Northern Ireland—the order was passed in 1986 but came into effect in 1987—to Xstir up" religious hatred. XStir up" is an interesting verbal construction in so far as it implies that the hatred is already there, bubbling away beneath the surface, ready to be stirred up at any moment. But this is perhaps not the moment to go further into that.
	However, in 13 years there have been only four convictions, and the longest sentence imposed was six months imprisonment. Bearing in mind the perennial passions aroused by religion in Northern Ireland when compared to England and Wales and, to a slightly lesser extent, Scotland, two conclusions can be drawn. The first is that such legislation is scarcely necessary; the second is that experience proves that in the rare cases of conviction a two-year maximum sentence is more than adequate. Seven years is quite unnecessary.

Lord Goldsmith: The amendment seeks to stop both the incitement to religious hatred and the religiously aggravated offences in Part 5 from coming into force until after a formal consultation process has taken place. It ill becomes a lawyer like me to take issue with the noble Lord, Lord Dixon-Smith, for describing the consultation recommended in the amendment as Xthe widest possible consultation", but it is a consultation which consists solely of lawyers. If one were going to have a consultation, one would think in terms of a much wider group in any event, including those in the community.
	Given that I was privileged to be the chairman of the Bar Council, as a matter of personal pride I should have liked to have seen it described by its proper name rather than as the XBar Association". That sounds to me a much less distinguished body than the one I was privileged to lead.
	I do not want to repeat what I said at Second Reading and during the first day in Committee on this part of the Bill—I wish simply to summarise—but the critical point is that there are people who have already sought to incite hatred against religious groups and to drive divisions between communities in this country. There are consistent reports of assaults motivated by religious hatred and of churches and mosques being attacked and damaged. The reality is that some law-abiding, peaceful people are in fear of their lives because others wrongly associate their religion with terrorism. That is why these provisions are included in the Bill. It is why we want the provision to which the amendment relates—if Members in both Houses are content that it should remain in the Bill—to come into force not in three months' time after a group of lawyers, however distinguished, have been consulted, but now.
	I draw attention to the point made by the noble Lord, Lord Dixon-Smith, that this is rather an odd amendment in any event. It does not require any agreement. It does not require any particular review after the agreement. It simply imposes a delay while a particular group of people are consulted before the provisions can come into force. If those provisions should come into force, as we have suggested that they should in order to deal with a present situation, they should not be delayed for this process of consultation. I recognise that there was a slower process of consultation in 1998 in relation to racially aggravated offences. But that is not the position that we believe we are in at the moment.
	In short, the amendment would do no more than delay the coming into force of the provisions. If, as we hope, Members will be persuaded that they should come into force, they should not be delayed by this particular process
	Incitement to religious hatred is not a new idea. It goes back at least to the Law Commission's report on blasphemy, where the subject was first raised. It has been touched on from time to time since then, and the proposed framework—as I ventured to suggest previously—is the tried and tested framework for incitement to racial hatred and racially aggravated offences. So the principles and the framework are there already. I suggest, therefore, that there is no need to consult on that framework, and I invite the noble Lord to withdraw his amendment.
	I acknowledge the remarks made by the noble Lord, Lord Monson. Again, without responding directly to what he said, perhaps I may respectfully direct his attention to my remarks at Second Reading and on the first day in Committee, when I set out the Government's response to the points that he has made as to the importance of these issues. I hope that that will be of assistance.

Lord Dixon-Smith: I am grateful to the noble and learned Lord the Attorney-General. I apologise profoundly to him for making a mistake over the title of the Bar Council. I am in fact responsible neither for drafting the amendment nor for its being before the Committee. So I plead complete ignorance in every sense of the term.
	I am satisfied with the noble and learned Lord's explanation. With that background, and at this hour, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 185A and 185B not moved.]
	Clauses 125 and 126 agreed to.
	House resumed: Bill reported with an amendment.
	House adjourned at twenty-five minutes before midnight.